RULES OF PROCEDURE ON ENVIRONMENTAL CASES

G.R. No. 223076, September 13, 2016

PILAR CAÑEDA BRAGA, PETER TIU LAVINA, ANTONIO H. VERGARA, BENJIE T. BADAL, DIOSDADO
ANGELO A. MAHIPUS, AND SAMAL CITY RESORT OWNERS ASSOCIATION, INC.
(SCROA), Petitioners, v. HON. JOSEPH EMILIO A. ABAYA, IN HIS CAPACITY AS SECRETARY OF THE
DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS, DEPARTMENT OF
TRANSPORTATION AND COMMUNICATIONS (DOTC), PRE-QUALIFICATION, BIDS AND AWARDS
COMMITTEE (PBAC) AND PHILIPPINE PORTS AUTHORITY (PPA), Respondents.

DECISION

BRION, J.:

This is an Urgent Petition for a Writ of Continuing Mandamus and/or Writ of Kalikasan with a prayer for the
issuance of a temporary environmental protection order (TEPO). The petition is directed against the
Department of Transportation and Communications (DOTC) and the Philippine Ports Authority's (PPA)
modernization project: the Davao Sasa Wharf (the project), a 30-year concession to develop, operate, and
manage the port under the Public-Private Partnership (PPP) scheme.

The project is allegedly being carried out without the necessary Environmental Compliance Certificate (ECC)
or Environmental Impact Statements required under Presidential Decree No. (P.D.) 15861 and P.D.
1151.2 The project also allegedly failed to conduct local consultation and to secure prior sanggunian approval
as required by the Local Government Code.3 chanrob leslaw

The Facts

The Port of Davao is a seaport located in Mindanao. It is compose of several ports, all within the gulf of
Davao, but its base port is the Sasa Wharf located at Barangay Sasa, Davao City.

In 2011, the Sasa Wharf was pegged for privatization under the PPP scheme.

In 2012, the PPA commissioned a feasibility study (PPA study) on the current condition of the Sasa Wharf
and its potential new targets in volume increase expansion. The study, which was completed in 2012, was
conducted by Science & Vision For Technology, Inc.

The PPA study estimated that the modernization project would cost an estimated 3.5 Billion pesos for the
purchase of new equipment and the installation of new facilities.4 c han robles law

However, the DOTC commissioned another firm, Hamburg port Consultants, to conduct a second feasibility
study (DOTC study) which was concluded in 2013. The DOTC study has a projected cost of 18 billion pesos
and requires the expansion of Sasa Wharf by 27.9 hectares.5 chan roble slaw

The DOTC study served as one of the primary considerations for current Sasa Wharf expansion project.

On December 21, 2014, the Regional Development Council for Region XI (the Council) endorsed the project
through Resolution No. 118 subject to the following conditions that must be met before its
implementation:6

1. The DOTC shall immediately secure the acquisition of 6.4 hectares of right of way, per
recommendation of the National Economic and Development Authority - Investment Coordination
Committee (NEDA-ICC);

2. The DOTC shall ensure that appropriate compensation is paid to the owners of the properties to be
acquired as additional right of way;

3. The DOTC shall ensure the proper relocation/resettlement of the informal settlers affected by the
project; andcralaw lawlib rary
 4. The DOTC shall ensure the project will also benefit the port users and the people of Davao by
providing better, more affordable service, and generating sustainable employment opportunities.7

On April 10, 2015, the DOTC published an invitation to pre-qualify and bid for the Project.8 chan rob leslaw

On March 15, 2016, the petitioners - all stakeholders from Davao City and Samal, Davao del Norte - filed
this Urgent Petition for a Writ of Continuing Mandamus and/or Writ of Kalikasan.

The Petition

The petitioners allege: (1) that the DOTC issued the notice of public bidding despite noncompliance with
Resolution No. 118; (2) that the DOTC did not conduct prior consultation and public hearings nor secure the
approval of the sanggunian concerned as required under Sections 26 and 27 of the LGC; (3) that the Davao
City sanggunian had passed a resolution objecting to the project for its noncompliance with the LGC; and
(4) that the DOTC has not yet obtained an Environmental Compliance Certificate (ECC) as required under
P.D. 1586.

They argue that the DOTC's implementation of the project - one that as a significant impact on the
environment - without preparing an Environmental Impact Statement, securing an ECC, or consulting the
affected stakeholders, violates their constitutional right to a healthy and balanced ecology.

The petitioners seek to restrain the implementation of the Project - including its bidding and award - until
the respondents secure an ECC and comply with the LGC.

The Counter-arguments

The respondents, through the Office of the Solicitor General (OSG), invoke the prematurity of the petition.
They argue that the Project is still in the bidding process; thus, there is still no proponent to implement it.

The proponent — not the respondents — has the duty to initiate the Environmental Impact Assessment
(EIA) process and to apply for the issuance of the ECC.9 Until the bidding process is concluded, the EIA
process cannot be undertaken and it would be premature to impute noncompliance with the Environmental
Impact Statement System.10 chanrobles law

Moreover, consultation with the stakeholders and the local government is premature and speculative at this
point because the proponent has not yet identified the actual details of the project's implementation. Again,
compliance with the consultation requirements of the LGC remains premature pending the award of the
contract.

They further argue that the allegations do not warrant the issuance of a writ of kalikasan because the
petitioners failed to prove the threat of environmental damage of such magnitude as to prejudice the life,
health, or property of inhabitants in two or more cities or provinces.11 cha nrob leslaw

Our Ruling

The petition is premature.

To better understand our judgment, we must first delve into the relevant laws and their progression over
time.

On June 6, 1977, President Ferdinand Marcos enacted P.D. 1151, the Philippine Environmental Policy. It
required all agencies and instrumentalities of the national government, including government-owned or -
controlled corporations (GOCCs), as well as private corporations, firms, and entities to prepare a
detailed Environmental Impact Statement (EIS) for every project or undertaking that significantly
affects the quality of the environment.12 chan roble slaw

A year later on June 11, 1978, President Marcos issued P.D. 1586 which expounded on P.D. 1151 to
institutionalized a more comprehensive EIS System.13 It introduced the ECC, a certificate issued by the
President his representative) to environmentally critical projects that have sufficient safeguards to protect
and preserve the environment. It also penalized th who violate the Environmental Impact System, its
implementing rules, or the conditions of their ECC.14 chanroble slaw
P.D. 1586 tasked the National Environmental Protection Council (the Council) to issue its implementing rules
and regulations (IRR). Environmental Management Bureau (EMB), a bureau under the Department of
Environment and Natural Resources (DENR), absorbed these powers later on after the council was
abolished.15cha nrob leslaw

In 1991, Congress enacted the LGC which promoted public participation by requiring national government
agencies to consult stakeholders before undertaking programs with significant ecological impact.

In 1996, President Fidel V. Ramos mandated the continuous Strengthening of DENR's Environmental Impact
Assessment Capability.16 He also required project proponents to conduct the environmental impact study
and the feasibility study of proposed projects simultaneously in order to maximize the use of resources.17 chan robles law

In an effort to further rationalize the EIS System and streamline the CC application process, President Gloria
Macapagal-Arroyo directed the DENR Secretary to issue new guidelines in 2002.18 cha nrob leslaw

Consequently, the DENR issued Administrative Order (DAO) No. 2003-30, the current IRR for the EIS
System.

Impact Assessment and the EIS System

Environmental Impact Assessment (EIA) is the process of evaluating and predicting the likely impacts -
including cumulative impacts - of an undertaking on the environment.19 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: ChanRoblesVi rt ualawlib ra ry

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.20
Projects or undertakings that pose a potential significant impact to the environment are required to undergo
impact assessment in order to secure ECCs.21 The proponent initiates the application process by filing a
comprehensive EIS with the EMB. The EIS should at least have the following: ChanRobles Vi rtua lawlib rary

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 cralawlawli bra ry

k. Other clearances and documents that may be determined and agreed upon during scoping.22

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.23 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.24cha nrob leslaw

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.25 cralawredc hanrobles law

The impact assessment concludes with EMB's approval (in the form of an ECC) or rejection (in the form of a
denial letter).26 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.

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 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.27 Section 4 of P.D. 1151 reads: ChanRoblesVi rtua lawlib rary

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:
chanRoble svirtual Lawlib ra ry

(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 involve 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.28 chan roble svirtuallaw lib rary

On the other hand, P.D. 1586 states: ChanRoblesVi rt ualawlib ra ry

Section 2. Environmental Impact Statement System. 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.29 chanrob lesvi rtua llawli bra ry

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.30 But
who ane the proponents in PPP Projects which are a collaborative effort between the government and the
private sector?

Republic Act No. 695731 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"32 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 or 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.

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 ompliance with other relevant laws. The LGC, in
particular, requires the government agency authorizing the project to conduct local consultation and kecure
prior consent for ecologically impactful projects: ChanRoble sVirt ualawli bra ry
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 nonrenewable 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.33 chan roblesv irt uallawl ibra ry

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.34 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
befor the project is implemented.

But when does implementation begin?

The BOT Law defines the proponent as the private sector entity with the contractual responsibility over
the project.35 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.36 chan roble slaw

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 isjsue a
"Notice to Commence Implementation" to the proponent.37 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.38 The agency shall review the detailed engineering designs in terms of its compliance with the
prescribed standards and specification the designs are found acceptable, the agency shall approve them
incorporation in the contract to be signed by the proponent and the agency.39 chanrob leslaw

The proponent shall construct the project based on the design and performance standards and specifications
in the detailed engineering design.40 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.

The Sasa Wharf Modernization Project has not yet reached the construction stage. The bidding process had
not even been concluded when ithe present petition was filed. On this account, the petition is also
premature for the purpose of compelling the respondents to comply with Sections 26 and 27 of the LGC.

The purpose of a writ of continuing mandamus is to compel the espondent to perform his duties under the
law. This remedy is available When any government agency, instrumentality, or officer unlawfully
neglects a Specific legal duty in connection with the enforcement or violation of an
environmental law, rule, or regulation, or a right therein, unlawfully excludes another from the use or
enjoyment of such right and :here is no other plain, speedy and adequate remedy in the ordinary course of
law.41
chanrobles law
The writ cannot be resorted to when the respondent is not the person obliged to perform the duty under the
law (as is the case under the EIS System) or when the period for the respondent to perform its legal duty
has not yet expired (as is. the case with the consultation requirements of the LGC). Accordingly, we cannot
issue a writ of continuing mandamus.

The petition does not warrant a writ of Kalikasan.

Likewise, the Court cannot issue a writ of kalikasan based on the petition. The writ is a remedy to anyone
whose constitutional right to a balanced and healthful ecology is violated or threatened with violation by an
lawful act or omission. However, the violation must involve environmental damage of such
magnitude as to prejudice the life, health, or property of inhabitants in two or more cities or
provinces in order to arrant the issuance of the writ.42 chanroble sl aw

The petitioners allege that the respondents have begun the process of transgressing their right to health and
a balanced ecology through the bidding process.43 They cite The Competitiveness of Global Port-Cities:
Synthesis Report44 to identify the four major negative impacts related to port operations: 1) environmental
impacts, 2) land use impacts, 3) traffic impacts, and 4) other impacts. The synthesis report claims that most
of these impacts affect the surrounding localities.

They claim that the environmental impacts of port operations "are within the field of air emissions, water
quality, soil, waste, biodiversity, noise and other impacts. These environmental impacts can have
consequences for the health of the population of the port city, especially the poorer parts of port cities."45 chanro bles law

The petitioners also cite Managing Impacts of Development in Coastal Zone, a joint publication of the DENR,
the Bureau of Fisheries Aquatic Resources (BFAR), the Department of the Interior and Government (DILG),
and the DENR Coastal Resource Management Project (CRMP) that identified the effects of coastal
construction and reclam including ports and offshore moorings.46 The petition alleges that: ChanRoblesVi rtua lawlib rary

26. According to Managing Impacts, "Coastal construction has been the most widespread of activities
affecting coastal resources" since "Any construction that modifies the shoreline will invariably
change currents, wave action, tidal fluctuations, and the transport of sediments along the coast"
while "Coastal construction that restricts the circulation of coastal water bodies can also degrade
water quali[t]y and coastal ecosystems."47

However, these allegations are insufficient to warrant a writ of kalikasan.

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 protest the
environment. The petition is misleading because it only identified the isks but neglected to mention the
existence and availability of mitigating measures.48 chan roble slaw

Moreover, this Court does not have the technical competence to ssess 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 estrain the conduct of the bidding process. The bidding process is not
equivalent to the implementation of the project. The bidding process itself 'annot 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 XI. Notably, the Resolution requires compliance before
the implementation of the project. Again, the project has not yet reached the implementation stage.
WHEREFORE, we DENY the petition for its prematurity and lack of merit.

SO ORDERED. chanRoblesvirt ual Lawlib rary

Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Peralta, Del Castillo, Perez, Mendoza, Reyes, Perlas-
Bernabe, Leonen, Jardeleza, and Caguioa, JJ., concur.
Bersamin,* J., on official leave.
 [G.R. No. 207257. February 3, 2015.]

HON. RAMON JESUS P. PAJE, in his capacity as SECRETARY

OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES
(DENR), petitioner, vs. HON. TEODORO A. CASIÑO, HON.
RAYMOND V. PALATINO, HON. RAFAEL V. MARIANO, HON.
EMERENCIANA A. DE JESUS, CLEMENTE G. BAUTISTA,
JR., HON. ROLEN C. PAULINO, HON. EDUARDO PIANO, HON.
JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ,
JR., HON. SARAH LUGERNA LIPUMANO-GARCIA, NORAIDA
VELARMINO, BIANCA CHRISTINE GAMBOA ESPINOS,
CHARO SIMONS, GREGORIO LLORCA MAGDARAOG,
RUBELH PERALTA, ALEX CORPUS HERMOSO, RODOLFO
SAMBAJON, REV. FR. GERARDO GREGORIO P. JORGE,
CARLITO A. BALOY, OFELIA D. PABLO, MARIO ESQUILLO,
ELLE LATINAZO, EVANGELINE Q. RODRIGUEZ, JOHN CARLO
DELOS REYES, respondents.

[G.R. No. 207276. February 3, 2015.]

REDONDO PENINSULA ENERGY,

INC., petitioner, vs. HON. TEODORO A. CASIÑO, HON.
RAYMOND V. PALATINO,HON. RAFAEL V. MARIANO, HON.
EMERENCIANA A. DE JESUS, CLEMENTE G. BAUTISTA,
JR., HON. ROLEN C. PAULINO, HON. EDUARDO PIANO, HON.
JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ,
JR., HON. SARAH LUGERNA LIPUMANO-GARCIA, NORAIDA
VELARMINO, BIANCA CHRISTINE GAMBOA ESPINOS,
CHARO SIMONS, GREGORIO LLORCA MAGDARAOG,
RUBELH PERALTA, ALEX CORPUS HERMOSO, RODOLFO
SAMBAJON, REV. FR. GERARDO GREGORIO P. JORGE,
CARLITO A. BALOY, OFELIA D. PABLO, MARIO ESQUILLO,
ELLE LATINAZO, EVANGELINE Q. RODRIGUEZ, JOHN CARLO
DELOS REYES, RAMON JESUS P. PAJE, in his capacity as
SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES AND SUBIC BAY METROPOLITAN
AUTHORITY,respondents.

[G.R. No. 207282. February 3, 2015.]

 HON. TEODORO A. CASIÑO, HON. RAYMOND V.
PALATINO, HON. EMERENCIANA A. DE JESUS, CLEMENTE
G. BAUTISTA, JR., HON. RAFAEL V. MARIANO, HON. ROLEN
C. PAULINO, HON. EDUARDO PIANO, HON. JAMES DE LOS
REYES, HON. AQUILINO Y. CORTEZ, JR., HON. SARAH
LUGERNA LIPUMANO-GARCIA, NORAIDA VELARMINO,
BIANCA CHRISTINE GAMBOA ESPINOS, CHARO SIMONS,
GREGORIO LLORCA MAGDARAOG, RUBELH PERALTA,
ALEX CORPUS HERMOSA, RODOLFO SAMBAJON, ET
AL., petitioners, vs. RAMON JESUS P. PAJE in his capacity as
SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES, SUBIC BAY METROPOLITAN
AUTHORITY, AND REDONDO PENINSULA ENERGY,
INC., respondents.

[G.R. No. 207366. February 3, 2015.]

SUBIC BAY METROPOLITAN

AUTHORITY, petitioner, vs. HON. TEODORO A. CASIÑO, HON.
RAYMOND V. PALATINO,HON. RAFAEL V. MARIANO, HON.
EMERENCIANA A. DE JESUS, CLEMENTE G. BAUTISTA,
JR., HON. ROLEN C. PAULINO, HON. EDUARDO PIANO, HON.
JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ,
JR., HON. SARAH LUGERNA LIPUMANO-GARCIA, NORAIDA
VELARMINO, BIANCA CHRISTINE GAMBOA, GREGORIO
LLORCA MAGDARAOG, RUBELH PERALTA, ALEX CORPUS
HERMOSO, RODOLFO SAMBAJON, REV. FR. GERARDO
GREGORIO P. JORGE, CARLITO A. BALOY, OFELIA D.
PABLO, MARIO ESQUILLO, ELLE LATINAZO, EVANGELINE Q.
RODRIGUEZ, JOHN CARLO DELOS
REYES, HON. RAMON JESUS P. PAJE, in his capacity as
SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES AND REDONDO PENINSULA
ENERGY, INC., respondents.

DECISION

DEL CASTILLO, J p:
Before this Court are consolidated Petitions for Review on Certiorari 1 assailing
the Decision 2 dated January 30, 2013 and the Resolution 3 dated May 22, 2013 of the Court
of Appeals (CA) in CA-G.R. SP No. 00015, entitled "Hon. Teodoro A. Casiño, et
al. v. Hon. Ramon Jesus P. Paje, et al."
Factual Antecedents
In February 2006, Subic Bay Metropolitan Authority (SBMA), a government
agency organized and established under Republic Act No. (RA) 7227, 4 and
Taiwan Cogeneration Corporation (TCC) entered into a Memorandum of
Understanding (MOU) expressing their intention to build a power plant in Subic
Bay which would supply reliable and affordable power to Subic Bay Industrial
Park (SBIP). 5
On July 28, 2006, SBMA and TCC entered into another MOU, whereby TCC
undertook to build and operate a coal-fired power plant. 6 In the said MOU, TCC
identified 20 hectares of land at Sitio Naglatore, Mt. Redondo, Subic Bay
Freeport Zone (SBFZ) as the suitable area for the project and another site of
approximately 10 hectares to be used as an ash pond. 7 TCC intends to lease
the property from SBMA for a term of 50 years with rent fixed at $3.50 per square
meter, payable in 10 equal 5-year installments. 8
On April 4, 2007, the SBMA Ecology Center issued SBFZ Environmental
Compliance Certificate (ECC) No. EC-SBFZ-ECC-69-21-500 in favor of Taiwan
Cogeneration International Corporation (TCIC), a subsidiary of TCC, 9 for the
construction, installation, and operation of2x150-MW Circulating Fluidized Bed
(CFB) Coal-Fired Thermal Power Plant at Sitio Naglatore. 10
On June 6, 2008, TCC assigned all its rights and interests under the MOU dated
July 28, 2006 to Redondo Peninsula Energy, Inc. (RP Energy), 11 a corporation
duly organized and existing under the laws of the Philippines with the primary
purpose of building, owning, and operating power plants in the Philippines,
among others. 12 Accordingly, an Addendum to the said MOU was executed by
SBMA and RP Energy. 13
RP Energy then contracted GHD Pty., Ltd. (GHD) to prepare an Environmental
Impact Statement (EIS) for the proposed coal-fired power plant and to assist RP
Energy in applying for the issuance of an ECC from the Department of
Environment and Natural Resources (DENR). 14
On August 27, 2008, the Sangguniang Panglungsod of Olongapo City issued
Resolution No. 131, Series of 2008, expressing the city government's objection to
the coal-fired power plant as an energy source and urging the proponent to
consider safer alternative sources of energy for Subic Bay. 15
On December 22, 2008, the DENR, through former Secretary Jose L. Atienza,
Jr., issued an ECC for the proposed 2x150-MW coal-fired power plant. 16
Sometime thereafter, RP Energy decided to include additional components in its
proposed coal-fired power plant. Due to the changes in the project design, which
involved the inclusion of a barge wharf, seawater intake breakwater, subsea
discharge pipeline, raw water collection system, drainage channel improvement,
and a 230kV double-circuit transmission line, 17 RP Energy requested the DENR
Environmental Management Bureau (DENR-EMB) to amend its ECC. 18 In
support of its request, RP Energy submitted to the DENR-EMB an Environmental
Performance Report and Management Plan (EPRMP); which was prepared by
GHD. 19 cEaCTS

On June 8, 2010, RP Energy and SBMA entered into a Lease and Development
Agreement (LDA) over a 380,004.456-square meter parcel of land to be used for
building and operating the coal-fired power plant. 20
On July 8, 2010, the DENR-EMB issued an amended ECC (first amendment)
allowing the inclusion of additional components, among others. 21
Several months later, RP Energy again requested the DENR-EMB to amend the
ECC. 22 Instead of constructing a 2x150-MW coal-fired power plant, as originally
planned, it now sought to construct a 1x300-MW coal-fired power plant. 23 In
support of its request, RP Energy submitted a Project Description Report (PDR)
to the DENR-EMB. 24
On May 26, 2011, the DENR-EMB granted the request and further amended the
ECC (second amendment). 25
On August 1, 2011, the Sangguniang Panglalawigan of Zambales issued
Resolution No. 2011-149, opposing the establishment of a coal-fired thermal
power plant at Sitio Naglatore, Brgy. Cawag, Subic, Zambales. 26
On August 11, 2011, the Liga ng mga Barangay of Olongapo City issued
Resolution No. 12, Series of 2011, expressing its strong objection to the coal-
fired power plant as an energy source. 27
On July 20, 2012, Hon. Teodoro A. Casiño, Hon. Raymond V. Palatino, Hon.
Rafael V. Mariano, Hon. Emerenciana A. De Jesus, Clemente G. Bautista,
Jr., Hon. Rolen C. Paulino, Hon. Eduardo Piano, Hon. James de los Reyes, Hon.
Aquilino Y. Cortez, Jr., Hon. Sarah Lugerna Lipumano-Garcia, Noraida
Velarmino, Bianca Christine Gamboa Espinos, Charo Simons, Gregorio Llorca
Magdaraog, Rubelh Peralta, Alex Corpus Hermoso, Rodolfo Sambajon, Rev. Fr.
Gerardo Gregorio P. Jorge, Carlito A. Baloy, Ofelia D. Pablo, Mario Esquillo, Elle
Latinazo, Evangeline Q. Rodriguez, and John Carlo delos Reyes (Casiño Group)
filed before this Court a Petition for Writ of Kalikasanagainst RP Energy, SBMA,
and Hon. Ramon Jesus P. Paje, in his capacity as Secretary of the DENR. 28
On July 31, 2012, this Court resolved, among others, to: (1) issue a Writ
of Kalikasan; and (2) refer the case to the CA for hearing and reception of
evidence and rendition of judgment. 29
While the case was pending, RP Energy applied for another amendment to its
ECC (third amendment) and submitted another EPRMP to the DENR-EMB,
proposing the construction and operation of a 2x300-MW coal-fired power
plant. 30
On September 11, 2012, the Petition for Writ of Kalikasan was docketed as CA-
G.R. SP No. 00015 and raffled to the Fifteenth Division of the CA. 31 In the
Petition, the Casiño Group alleged, among others, that the power plant project
would cause grave environmental damage; 32 that it would adversely affect the
health of the residents of the municipalities of Subic, Zambales, Morong,
Hermosa, and the City of Olongapo; 33 that the ECC was issued and the LDA
entered into without the prior approval of the concerned sanggunians as required
under Sections 26 and 27 of the Local Government Code (LGC); 34 that the LDA
was entered into without securing a prior certification from the National
Commission on Indigenous Peoples (NCIP) as required under Section 59 of RA
8371 or the Indigenous Peoples' Rights Act of 1997 (IPRA Law); 35 that Section
8.3 of DENR Administrative Order No. 2003-30 (DAO 2003-30) which allows
amendments of ECCs is ultra vires because the DENR has no authority to decide
on requests for amendments of previously issued ECCs in the absence of a new
EIS; 36 and that due to the nullity of Section 8.3 of DAO 2003-30, all amendments
to RP Energy's ECC are null and void. 37
On October 29, 2012, the CA conducted a preliminary conference wherein the
parties, with their respective counsels, appeared except
for Hon. Teodoro A. Casiño, Hon. Rafael V. Mariano, Hon. Emerencia A.
De Jesus, Clemente G. Bautista, Mario Esquillo, Elle Latinazo, Evangeline Q.
Rodriguez, and the SBMA. 38 The matters taken up during the preliminary
conference were embodied in the CA's Resolution dated November 5, 2012, to
wit:
I. ISSUES
A. Petitioners (Casiño Group)
1. Whether . . . the DENR Environmental Compliance
Certificate ('ECC' . . .) in favor of RP Energy for a 2x150
MW Coal-Fired Thermal Power Plant Project ('Power
Plant,' . . .) and its amendment to 1x300 MW Power
Plant, and the Lease and Development Agreement
between SBMA and RP Energy complied with the
Certification Precondition as required under Section 59 of
Republic Act No. 8371 or the Indigenous People's Rights
Act of 1997 ('IPRA Law,' . . .);
 2. Whether . . . RP Energy can proceed with the
construction and operation of the 1x300 MW Power Plant
without prior consultation with and approval of the
concerned local government units ('LGUs,' . . .), pursuant
to Sections 26 and 27 of Republic Act No. 7160 or the
Local Government Code; CaEATI

3. Whether . . . Section 8.3 of DENR Administrative

Order No. 2003-30 ('DAO No. 2003-30,' . . .) providing for
the amendment of an ECC is null and void for being ultra
vires; and
4. Whether . . . the amendment of RP Energy's ECC
under Section 8.3 of DAO No. 2003-30 is null and void.
B. Respondent RP Energy
1. Whether . . . Section 8.3 of DAO No. 2003-30 can be
collaterally attacked;
1.1 Whether . . . the same is valid until annulled;
2. Whether . . . petitioners exhausted their administrative
remedies with respect to the amended ECC for the 1x300
MW Power Plant;
2.1 Whether . . . the instant Petition is proper;
3. Whether . . . RP Energy complied with all the
procedures/requirements for the issuance of the DENR
ECC and its amendment;
3.1 Whether . . . a Certificate of Non-Overlap from
the National Commission on Indigenous Peoples
is applicable in the instant case;
4. Whether . . . the LGU's approval under Sections 26
and 27 of the Local Government Code is necessary for
the issuance of the DENR ECC and its amendments, and
what constitutes LGU approval;
5. Whether . . . there is a threatened or actual violation of
environmental laws to justify the Petition;
5.1 Whether . . . the approved 1x300 MW Power
Plant complied with the accepted legal standards
on thermal pollution of coastal waters, air pollution,
water pollution, and acid deposits on aquatic and
terrestrial ecosystems; and
6. Whether . . . the instant Petition should be dismissed
for failure to comply with the requirements of proper
 verification and certification of non-forum shopping with
respect to some petitioners.
C. Respondent DENR Secretary Paje
1. Whether . . . the issuance of the DENR ECC and its
amendment in favor of RP Energy requires compliance
with Section 59 of the IPRA Law, as well as Sections 26
and 27 of the Local Government Code;
2. Whether . . . Section 8.3 of DAO No. 2003-30 can be
collaterally attacked in this proceeding; and
3. Whether . . . Section 8.3 of DAO No. 2003-30 is valid.
II. ADMISSIONS/DENIALS
Petitioners, through Atty. Ridon, admitted all the allegations in RP
Energy's Verified Return, except the following:
1. paragraphs 1.4 to 1.7;
2. paragraphs 1.29 to 1.32; and
3. paragraphs 1.33 to 1.37.
Petitioners made no specific denial with respect to the allegations of
DENR Secretary Paje's Verified Return. . . .
Respondent RP Energy proposed the following stipulations, which were
all admitted by petitioners, through Atty. Ridon, viz.:
1. The 1x300 MW Power Plant is not yet operational;
2. At present, there is no environmental damage;
3. The 1x300 MW Power Plant project is situated within
the Subic Special Economic Zone; and
4. Apart from the instant case, petitioners have not
challenged the validity of Section 8.3 of DAO No. 2003-
30.
Public respondent DENR Secretary Paje did not propose any matter for
stipulation. 39
Thereafter, trial ensued.
The Casiño Group presented three witnesses, namely: (1) Raymond V.
Palatino, a two-term representative of the Kabataan Partylist in the House of
Representatives; 40 (2) Alex C. Hermoso, the convenor of the Zambales-
Olongapo City Civil Society Network, a director of the PREDA 41 Foundation,
and a member of the Zambales Chapter of the Kaya Natin Movement and the
Zambales Chapter of the People Power Volunteers for Reform; 42 and
(3) Ramon Lacbain, the Vice-Governor of the Province of Zambales. 43 IEHDAT

RP Energy presented five witnesses, namely: (1) Junisse P. Mercado (Ms.

Mercado), an employee of GHD and the Project Director of ongoing projects for
RP Energy regarding the proposed power plant project; 44 (2) Juha Sarkki (Engr.
Sarkki), a Master of Science degree holder in Chemical Engineering; 45 (3) Henry
K. Wong, a degree holder of Bachelor of Science Major in Mechanical
Engineering from Worcester Polytechnic Institute; 46 (4) Dr. Ely Anthony R.
Ouano (Dr. Ouano), a licensed Chemical Engineer, Sanitary Engineer, and
Environmental Planner in the Philippines; 47 and (5) David C. Evangelista (Mr.
Evangelista), a Business Development Analyst working for RP Energy. 48
SBMA, for its part, presented its Legal Department Manager, Atty. Von F.
Rodriguez (Atty. Rodriguez). 49
The DENR, however, presented no evidence. 50
Meanwhile, on October 31, 2012, a Certificate of Non-Overlap (CNO) was issued
in connection with RP Energy's application for the2x300-MW coal-fired power
plant. 51
On November 15, 2012, the DENR-EMB granted RP Energy's application for the
third amendment to its ECC, approving the construction and operation
of a 2x300-MW coal-fired power plant, among others. 52
Ruling of the Court of Appeals
On January 30, 2013, the CA rendered a Decision denying the privilege of the
writ of kalikasan and the application for an environment protection order due to
the failure of the Casiño Group to prove that its constitutional right to a balanced
and healthful ecology was violated or threatened. 53 The CA likewise
found no reason to nullify Section 8.3 of DAO No. 2003-30. It said that the
provision was notultra vires, as the express power of the Secretary of the DENR,
the Director and Regional Directors of the EMB to issue an ECC impliedly
includes the incidental power to amend the same. 54 In any case, the CA ruled
that the validity of the said section could not be collaterally attacked in a petition
for a writ of kalikasan. 55
Nonetheless, the CA resolved to invalidate the ECC dated December 22, 2008
for non-compliance with Section 59 of the IPRA Law 56and Sections 26 and 27 of
the LGC 57 and for failure of Luis Miguel Aboitiz (Mr. Aboitiz), Director of RP
Energy, to affix his signature in the Sworn Statement of Full Responsibility, which
is an integral part of the ECC. 58 Also declared invalid were the ECC first
amendment dated July 8, 2010 and the ECC second amendment dated May 26,
2011 in view of the failure of RP Energy to comply with the restrictions set forth in
the ECC, which specifically require that "any expansion of the project beyond the
project description or any change in the activity . . . shall be subject to a new
Environmental Impact Assessment." 59 However, as to the ECC third amendment
dated November 15, 2012, the CA decided not to rule on its validity since it was
not raised as an issue during the preliminary conference. 60
The CA also invalidated the LDA entered into by SBMA and RP Energy as it was
issued without the prior consultation and approval of all
the sanggunians concerned as required under Sections 26 and 27 of the
LGC, 61 and in violation of Section 59, Chapter VIII of the IPRA Law, which
enjoins all departments and other governmental agencies from granting any
lease without a prior certification that the area affected does not overlap with any
ancestral domain. 62 The CA noted that no CNO was secured from the NCIP
prior to the execution of the LDA, 63 and that the CNO dated October 31, 2012
was secured during the pendency of the case and was issued in connection with
RP Energy's application for a 2x300-MW coal-fired power plant. 64
Thus, the CA disposed of the case in this wise:
WHEREFORE, premises considered, judgment is hereby rendered
DENYING the privilege of the writ of kalikasan and the application for an
environmental protection order. The prayer to declare the nullity of
Section 8.3 of the DENR Administrative Order No. 2003-30 for
being ultra vires is DENIED; and the following are all declared INVALID:
1. The Environmental Compliance Certificate (ECC Ref. Code: 0804-
011-4021) dated 22 December 2008 issued in favor of respondent
Redondo Peninsula Energy, Inc. by former Secretary Jose L. Atienza, Jr.
of the Department of Environment and Natural Resources;
2. The ECC first amendment dated 08 July 2010 and ECC second
amendment dated 26 May 2011, both issued in favor of respondent
Redondo Peninsula Energy, Inc. by OIC Director Atty. Juan Miguel T.
Cuna of the Department of Environment and Natural Resources,
Environmental Management Bureau; and
3. The Lease and Development Agreement dated 08 June 2010 entered
into by respondents Subic Bay Metropolitan Authority and Redondo
Peninsula Energy, Inc. involving a parcel of land consisting of
380,004.456 square meters.
SO ORDERED. 65
The DENR and SBMA separately moved for reconsideration. 66 RP Energy
filed a Motion for Partial Reconsideration, 67 attaching theretoa signed Statement
of Accountability. 68 The Casiño Group, on the other hand, filed Omnibus Motions
for Clarification and Reconsideration. 69 TAScID

On May 22, 2013, the CA issued a Resolution 70 denying the aforesaid motions
for lack of merit. The CA opined that the reliefs it granted in its Decision are
allowed under Section 15, Rule 7 of the Rules of Procedure for Environmental
Cases as the reliefs enumerated therein are broad, comprehensive, and non-
exclusive. 71 In fact, paragraph (e) of the said provision allows the granting of
"such other reliefs" in consonance with the objective, purpose, and intent of the
Rules. 72 SBMA's contention that the stoppage of aproject for non-compliance
with Section 59 of the IPRA Law may only be done by the indigenous cultural
communities or indigenous peoples was also brushed aside by the CA as
the Casiño Group did not file a case under the IPRA Law but a Petition for a Writ
ofKalikasan, which is available to all natural or juridical persons whose
constitutional right to a balanced and healthful ecology is violated, or threatened
to be violated. 73 As to RP Energy's belated submission of a signed Statement of
Accountability, the CA gave no weight and credence to it as the belated
submission of such document, long after the presentation of evidence of the
parties had been terminated, is not in accord with the rules of fair play. 74 Neither
was the CA swayed by the argument that the omitted signature of Luis Miguel
Aboitiz is a mere formal defect, which does not affect the validity of the entire
document. 75 The dispositive portion of the Resolution reads:
WHEREFORE, premises considered, respondents Subic Bay
Metropolitan Authority's Motion for Reconsideration dated
18 February2013, Department of Environment and Natural Resources
Secretary Ramon Jesus P. Paje's Motion for Reconsideration dated
19February 2013, and Redondo Peninsula Energy, Inc.'s Motion for
Partial Reconsideration dated 22 February 2013, as well as petitioners'
Omnibus Motions for Clarification and Reconsideration dated
25 February 2013, are all DENIED for lack of merit.
SO ORDERED. 76
Unsatisfied, the parties appealed to this Court.
The Casiño Group's arguments
The Casiño Group, in essence, argues that it is entitled to a Writ of Kalikasan as
it was able to prove that the operation of the power plant would cause
environmental damage and pollution, and that this would adversely affect the
residents of the provinces of Bataan and Zambales, particularly the municipalities
of Subic, Morong, Hermosa, and the City of Olongapo. It cites as basis RP
Energy's EIS, which allegedly admits that acid rain may occur in the combustion
of coal; 77 that the incidence of asthma attacks among residents in the vicinity of
the project site may increase due to exposure to suspended particles from plant
operations; 78 and that increased sulfur oxides (SOx) and nitrogen oxides (NOx)
emissions may occur during plant operations. 79 It also claims that when the
SBMA conducted Social Acceptability Policy Consultations with different
stakeholders on the proposed power plant, the results indicated that the overall
persuasion of the participants was a clear aversion to the project due to
environmental, health, economic and socio-cultural concerns.80 Finally, it
contends that the ECC third amendment should also be nullified for failure to
comply with the procedures and requirements for the issuance of the ECC. 81
The DENR's arguments
The DENR imputes error on the CA in invalidating the ECC and its amendments,
arguing that the determination of the validity of the ECC as well as its
amendments is beyond the scope of a Petition for a Writ of Kalikasan. 82 And
even if it is within the scope, there is noreason to invalidate the ECC and its
amendments as these were issued in accordance with DAO No. 2003-30. 83 The
DENR also insists that contrary to the view of the CA, a new EIS was no longer
necessary since the first EIS was still within the validity period when the first
amendment was requested, and that this is precisely the reason RP Energy was
only required to submit an EPRMP in support of its application for the first
amendment. 84 As to the second amendment, the DENR-EMB only required RP
Energy to submit documents to support the proposed revision considering that
the change in configuration of the power plant project, from 2x150MW to
1x300MW, was not substantial. 85 Furthermore, the DENR argues
that no permits, licenses, and/or clearances from other government agencies are
required in the processing and approval of the ECC. 86 Thus, non-compliance
with Sections 26 and 27 of the LGC as well as Section 59 of the IPRA Law is
not a ground to invalidate the ECC and its amendments. 87 The DENR further
posits that the ECC is not aconcession, permit, or license but is a document
certifying that the proponent has complied with all the requirements of the EIS
System and has committed to implement the approved Environmental
Management Plan. 88 The DENR invokes substantial justice so that the belatedly
submitted certified true copy of the ECC containing the signature of Mr. Aboitiz
on the Statement of Accountability may be accepted and accorded weight and
credence. 89 IAaCST

SBMA's arguments
For its part, SBMA asserts that since the CA did not issue a Writ of Kalikasan, it
should not have invalidated the LDA and that in doing so, the CA acted beyond
its powers. 90 SBMA likewise puts in issue the legal capacity of the Casiño Group
to impugn the validity of the LDA 91 and its failure to exhaust administrative
remedies. 92 In any case, SBMA contends that there is no legal basis to
invalidate the LDA as prior consultation under Sections 26 and 27 of the LGC is
not required in this case considering that the area is within the SBFZ.93 Under RA
7227, it is the SBMA which has exclusive jurisdiction over projects and leases
within the SBFZ and that in case of conflict between the LGC and RA 7227, it is
the latter, a special law, which must prevail. 94 Moreover, the lack of prior
certification from the NCIP is also not a ground to invalidate a contract. 95 If at all,
the only effect of non-compliance with the said requirement under Section 59 of
the IPRA Law is the stoppage or suspension of the project. 96 Besides, the
subsequent issuance of a CNO has cured any legal defect found in the LDA. 97
RP Energy's arguments
RP Energy questions the propriety of the reliefs granted by the CA considering
that it did not issue a writ of kalikasan in favor of theCasiño Group. 98 RP Energy
is of the view that unless a writ of kalikasan is issued, the CA has no power to
grant the reliefs prayed for in the Petition. 99 And even if it does, the reliefs are
limited to those enumerated in Section 15, Rule 7 of the Rules of Procedure for
Environmental Cases and that the phrase "such other reliefs" in paragraph (e)
should be limited only to those of the same class or general nature as the four
other reliefs enumerated. 100 As to the validity of the LDA, the ECC and its
amendments, the arguments of RP Energy are basically the same arguments
interposed by SBMA and the DENR. RP Energy maintains that the ECC and its
amendments were obtained in compliance with the DENR rules and
regulations; 101 that a CNO is not necessary in the execution of an LDA and in
the issuance of the ECC and its amendments; 102 and that prior approval of the
local governments, which may be affected by the project, are not required
because under RA 7227, the decision of the SBMA shall prevail in matters
affecting the Subic Special Economic Zone (SSEZ), except in matters involving
defense and security. 103 RP Energy also raises the issue of non-exhaustion of
administrative remedies on the part of the Casiño Group. 104
Preliminaries
This case affords us an opportunity to expound on the nature and scope of the
writ of kalikasan. It presents some interesting questions about law and justice in
the context of environmental cases, which we will tackle in the main body of this
Decision.
But we shall first address some preliminary matters, in view of the manner by
which the appellate court disposed of this case.
The Rules on the Writ of Kalikasan, 105 which is Part III of the Rules of Procedure
for Environmental Cases, 106 was issued by the Court pursuant to its power to
promulgate rules for the protection and enforcement of constitutional rights, 107 in
particular, the individual's right to a balanced and healthful ecology. 108 Section 1
of Rule 7 provides:
Section 1. Nature of the writ. — The writ is a remedy available
to a natural or juridical person, entity authorized by law, people's
organization, non-governmental organization, or any public interest
group accredited by or registered with any government agency, on
behalf of persons whose constitutional right to a balanced and healthful
ecology is violated, or threatened with violation by an unlawful act or
omission of a public official or employee, or private individual or entity,
 involving environmental damage of such magnitude as to prejudice the
life, health or property of inhabitants in two or more cities or provinces.
The writ is categorized as a special civil action and was, thus, conceptualized as
an extraordinary remedy, which aims to provide judicial relief from threatened or
actual violation/s of the constitutional right to a balanced and healthful ecology
of a magnitude or degree of damage that transcends political and territorial
boundaries. 109 It is intended "to provide a stronger defense for environmental
rights through judicial efforts where institutional arrangements of enforcement,
implementation and legislation have fallen short" 110 and seeks "to address the
potentially exponential nature of large-scale ecological threats." 111
Under Section 1 of Rule 7, the following requisites must be present to avail of this
extraordinary remedy: (1) there is an actual or threatened violation of the
constitutional right to a balanced and healthful ecology; (2) the actual or
threatened violation arises from an unlawful act or omission of a public official or
employee, or private individual or entity; and (3) the actual or threatened violation
involves or will lead to an environmental damage of such magnitude as to
prejudice the life, health or property of inhabitants in two or more cities or
provinces.
Expectedly, the Rules do not define the exact nature or degree of environmental
damage but only that it must be sufficiently grave, in terms of the territorial scope
of such damage, so as to call for the grant of this extraordinary remedy. The
gravity of environmental damage sufficient to grant the writ is, thus, to be decided
on a case-to-case basis. AHDaET

If the petitioner successfully proves the foregoing requisites, the court shall
render judgment granting the privilege of the writ ofkalikasan. Otherwise, the
petition shall be denied. If the petition is granted, the court may grant the reliefs
provided for under Section 15 of Rule 7, to wit:
Section 15. Judgment. — Within sixty (60) days from the time the
petition is submitted for decision, the court shall render judgment
granting or denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist from
committing acts or neglecting the performance of a duty in violation of
environmental laws resulting in environmental destruction or damage;
(b) Directing the respondent public official, government agency, private
person or entity to protect, preserve, rehabilitate or restore the
environment;
 (c) Directing the respondent public official, government agency, private
person or entity to monitor strict compliance with the decision and orders
of the court;
(d) Directing the respondent public official, government agency, or
private person or entity to make periodic reports on the execution of the
final judgment; and
(e) Such other reliefs which relate to the right of the people to a balanced
and healthful ecology or to the protection, preservation, rehabilitation or
restoration of the environment, except the award of damages to
individual petitioners.
It must be noted, however, that the above enumerated reliefs are non-
exhaustive. The reliefs that may be granted under the writ are broad,
comprehensive and non-exclusive. 112
Prescinding from the above, the DENR, SBMA and RP Energy are one in
arguing that the reliefs granted by the appellate court, i.e.,invalidating the ECC
and its amendments, are improper because it had denied the Petition for Writ
of Kalikasan upon a finding that theCasiño Group failed to prove the alleged
environmental damage, actual or threatened, contemplated under the Rules.
Ordinarily, no reliefs could and should be granted. But the question may be
asked, could not the appellate court have granted the Petition for Writ
of Kalikasan on the ground of the invalidity of the ECC for failure to comply with
certain laws and rules?
This question is the starting point for setting up the framework of analysis which
should govern writ of kalikasan cases.
In their Petition for Writ of Kalikasan, 113 the Casiño Group's allegations, relative
to the actual or threatened violation of the constitutional right to a balanced and
healthful ecology, may be grouped into two.
The first set of allegations deals with the actual environmental damage that will
occur if the power plant project is implemented. TheCasiño Group claims that the
construction and operation of the power plant will result in (1) thermal pollution of
coastal waters, (2) air pollution due to dust and combustion gases, (3) water
pollution from toxic coal combustion waste, and (4) acid deposition in aquatic and
terrestrial ecosystems, which will adversely affect the residents of the Provinces
of Bataan and Zambales, particularly the Municipalities of Subic, Morong and
Hermosa, and the City of Olongapo.
The second set of allegations deals with the failure to comply with certain laws
and rules governing or relating to the issuance of an ECC and amendments
thereto. The Casiño Group claims that the ECC was issued in violation of (1) the
DENR rules on the issuance and amendment of an ECC, particularly, DAO 2003-
30 and the Revised Procedural Manual for DAO 2003-30 (Revised Manual), (2)
Section 59 of the IPRA Law, and (3) Sections 26 and 27 of the LGC. In addition,
it claims that the LDA entered into between SBMA and RP Energy violated
Section 59 of the IPRA Law.
As to the first set of allegations, involving actual damage to the environment, it is
not difficult to discern that, if they are proven, then the Petition for Writ
of Kalikasan could conceivably be granted.
However, as to the second set of allegations, a nuanced approach is warranted.
The power of the courts to nullify an ECC existed even prior to the promulgation
of the Rules on the Writ of Kalikasan for judicial review of the acts of
administrative agencies or bodies has long been recognized 114 subject, of
course, to the doctrine of exhaustion of administrative remedies. 115

But the issue presented before us is not a simple case of reviewing the
acts of an administrative agency, the DENR, which issued the ECC and its
amendments. The challenge to the validity of the ECC was raised in the
context of a writ of kalikasan case. The question then is, can the validity of an
ECC be challenged via a writ of kalikasan?
We answer in the affirmative subject to certain qualifications. cCSHET

As earlier noted, the writ of kalikasan is principally predicated on an actual or

threatened violation of the constitutional right to abalanced and healthful ecology,
which involves environmental damage of a magnitude that transcends political
and territorial boundaries. A party, therefore, who invokes the writ based on
alleged defects or irregularities in the issuance of an ECC must not only allege
and prove such defects or irregularities, but must also provide a causal link or, at
least, a reasonable connection between the defects or irregularities in the
issuance of an ECC and the actual or threatened violation of the constitutional
right to a balanced and healthful ecology of the magnitude contemplated under
the Rules. Otherwise, the petition should be dismissed outright and the action re-
filed before the proper forum with due regard to the doctrine of exhaustion of
administrative remedies. This must be so if we are to preserve the noble and
laudable purposes of the writ against those who seek to abuse it.
An example of a defect or an irregularity in the issuance of an ECC, which could
conceivably warrant the granting of the extraordinary remedy of the writ
of kalikasan, is a case where there are serious and substantial
misrepresentations or fraud in the application for the ECC, which, if not
immediately nullified, would cause actual negative environmental impacts of the
magnitude contemplated under the Rules, because the government agencies
and LGUs, with the final authority to implement the project, may subsequently
rely on such substantially defective or fraudulent ECC in approving the
implementation of the project.
To repeat, in cases of defects or irregularities in the issuance of an ECC, it is not
sufficient to merely allege such defects or irregularities, but to show a causal link
or reasonable connection with the environmental damage of the magnitude
contemplated under the Rules. In the case at bar, no such causal link or
reasonable connection was shown or even attempted relative to the aforesaid
second set of allegations. It is a mere listing of the perceived defects or
irregularities in the issuance of the ECC. This would have been sufficient reason
to disallow the resolution of such issues in a writ of kalikasan case.
However, inasmuch as this is the first time that we lay down this principle, we
have liberally examined the alleged defects or irregularities in the issuance of the
ECC and find that there is only one group of allegations, relative to the ECC, that
can be reasonably connected to an environmental damage of the magnitude
contemplated under the Rules. This is with respect to the allegation that there
was no environmental impact assessment relative to the first and second
amendments to the subject ECC. If this were true, then the implementation of the
project can conceivably actually violate or threaten to violate the right
to a healthful and balanced ecology of the inhabitants near the vicinity of the
power plant. Thus, the resolution of such an issue could conceivably be resolved
in a writ ofkalikasan case provided that the case does not violate, or is an
exception to the doctrine of exhaustion of administrative remedies and primary
jurisdiction. 116
TDCaSE

As to the claims that the issuance of the ECC violated the IPRA Law and LGC
and that the LDA, likewise, violated the IPRA Law, we find the same not to be
within the coverage of the writ of kalikasan because, assuming there was non-
compliance therewith, no reasonable connection can be made to an actual or
threatened violation of the right to a balanced and healthful ecology of the
magnitude contemplated under the Rules.
To elaborate, the alleged lack of approval of the concerned sanggunians over the
subject project would not lead to or is not reasonably connected with
environmental damage but, rather, it is an affront to the local autonomy of LGUs.
Similarly, the alleged lack of acertificate precondition that the project site does
not overlap with an ancestral domain would not result in or is not reasonably
connected with environmental damage but, rather, it is an impairment of the right
of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) to their
ancestral domains. These alleged violations could be the subject of appropriate
remedies before the proper administrative bodies (like the NCIP) or a separate
action to compel compliance before the courts, as the case may be. However,
the writ of kalikasan would not be the appropriate remedy to address and resolve
such issues.
Be that as it may, we shall resolve both the issues proper in a writ
of kalikasan case and those which are not, commingled as it were here, because
of the exceptional character of this case. We take judicial notice of the looming
power crisis that our nation faces. Thus, the resolution of all the issues in this
case is of utmost urgency and necessity in order to finally determine the fate of
the project center of this controversy. If we were to resolve only the issues proper
in a writ of kalikasan case and dismiss those not proper therefor, that will leave
such unresolved issues open to another round of protracted litigation. In any
case, we find the records sufficient to resolve all the issues presented herein. We
also rule that, due to the extreme urgency of the matter at hand, the present case
is an exception to the doctrine of exhaustion of administrative remedies. 117 As
we have often ruled, in exceptional cases, we can suspend the rules of
procedure in order to achieve substantial justice, and to address urgent and
paramount State interests vital to the life of our nation.
Issues
In view of the foregoing, we shall resolve the following issues:
1. Whether the Casiño Group was able to prove that the
construction and operation of the power plant will cause
grave environmental damage. AHEDaI

1.1. The alleged thermal pollution of coastal waters, air

pollution due to dust and combustion gases, water
pollution from toxic coal combustion waste, and acid
deposition to aquatic and terrestrial ecosystems that
will be caused by the project.
1.2. The alleged negative environmental assessment of the
project by experts in a report generated during the
social acceptability consultations.
1.3. The alleged admissions of grave environmental damage
in the EIS itself of the project.
2. Whether the ECC is invalid for lack of signature of Mr. Luis
Miguel Aboitiz, as representative of RP Energy, in the
Statement of Accountability of the ECC.
3. Whether the first and second amendments to the ECC are
invalid for failure to undergo a new environmental impact
assessment (EIA) because of the utilization of inappropriate
EIA documents.
4. Whether the Certificate of Non-Overlap, under Section 59 of the
IPRA Law, is a precondition to the issuance of an ECC and
the lack of its prior issuance rendered the ECC invalid.
 5. Whether the Certificate of Non-Overlap, under Section 59 of the
IPRA Law, is a precondition to the consummation of the
Lease and Development Agreement (LDA) between SBMA
and RP Energy and the lack of its prior issuance rendered
the LDA invalid.
6. Whether compliance with Section 27, in relation to Section 26, of
the LGC (i.e., approval of the
concernedsanggunian requirement) is necessary prior to the
implementation of the power plant project.
7. Whether the validity of the third amendment to the ECC can be
resolved in this case.
Ruling
The parties to this case appealed from the decision of the appellate court
pursuant to Section 16, Rule 7 of the Rules of Procedure for Environmental
Cases, viz.:
Section 16. Appeal. — Within fifteen (15) days from the date of notice of
the adverse judgment or denial of motion for reconsideration, any party
may appeal to the Supreme Court under Rule 45 of the Rules of
Court. The appeal may raise questions of fact. (Emphasis supplied)
It is worth noting that the Rules on the Writ of Kalikasan allow the parties to raise,
on appeal, questions of fact — and, thus, constitutes an exception to Rule 45 of
the Rules of Court — because of the extraordinary nature of the circumstances
surrounding the issuance ofa writ of kalikasan. 118 Thus, we shall review both
questions of law and fact in resolving the issues presented in this case.
We now rule on the above-mentioned issues in detail.
I.
Whether the Casiño Group was able to prove that the construction and
operation of the power plant will cause grave environmental damage.
The alleged thermal pollution of coastal
waters, air pollution due to dust and
combustion gases, water pollution from
toxic coal combustion waste, and acid
deposition in aquatic and terrestrial
ecosystems that will be caused by the
project.
As previously noted, the Casiño Group alleged that the construction and
operation of the power plant shall adversely affect the residents of the Provinces
of Bataan and Zambales, particularly, the Municipalities of Subic, Morong and
Hermosa, and the City of Olongapo, as well as the sensitive ecological balance
of the area. Their claims of ecological damage may be summarized as follows:
1. Thermal pollution of coastal waters. Due to the discharge of
heated water from the operation of the plant, they claim that
the temperature of the affected bodies of water will rise
significantly. This will have adverse effects on aquatic
organisms. It will also cause the depletion of oxygen in the
water. RP Energy claims that there will be nomore
than a 3ºC increase in water temperature but
the Casiño Group claims that a 1ºC to 2ºC rise can already
affect the metabolism and other biological functions of
aquatic organisms such as mortality rate and
reproduction. SEcAIC

2. Air pollution due to dust and combustion gases. While

the Casiño Group admits that Circulating Fluidized Bed
(CFB) Coal technology, which will be used in the power
plant, is a clean technology because it reduces the emission
of toxic gases, it claims that volatile organic compounds,
specifically, polycyclic aromatic hydrocarbons (PAHs) will
also be emitted under the CFB. PAHs are categorized as
pollutants with carcinogenic and mutagenic characteristics.
Carbon monoxide, a poisonous gas, and nitrous
oxide, a lethal global warming gas, will also be produced.
3. Water pollution from toxic coal combustion waste. The waste
from coal combustion or the residues from burning pose
serious environmental risk because they are toxic and may
cause cancer and birth defects. Their release to nearby
bodies of water will be a threat to the marine ecosystem of
Subic Bay. The project is located in a flood-prone area and
is near three prominent seismic faults as identified by
Philippine Institute of Volcanology and Seismology. The
construction of an ash pond in an area susceptible to
flooding and earthquake also undermines SBMA's duty to
prioritize the preservation of the water quality in Subic Bay.
4. Acid deposition in aquatic and terrestrial ecosystems. The power
plant will release 1,888 tons of nitrous oxides and 886 tons
of sulfur dioxide per year. These oxides are responsible for
acid deposition. Acid deposition directly impacts aquatic
ecosystems. It is toxic to fish and other aquatic animals. It
will also damage the forests near Subic Bay as well as the
wildlife therein. This will threaten the stability of the biological
 diversity of the Subic Bay Freeport which was declared as
one of the ten priority sites among the protected areas in the
Philippines and the Subic Watershed and Forest Reserve.
This will also have an adverse effect on tourism. 119
In its January 30, 2013 Decision, the appellate court ruled that the Casiño Group
failed to prove the above allegations.
We agree with the appellate court. cEaACD

Indeed, the three witnesses presented by the Casiño Group are not experts on
the CFB technology or on environmental matters. These witnesses even
admitted on cross-examination that they are not competent to testify on the
environmental impact of the subject project. What is wanting in their testimonies
is their technical knowledge of the project design/implementation or some other
aspects of the project, even those not requiring expert knowledge, vis-à-vis the
significant negative environmental impacts which the CasiñoGroup alleged will
occur. Clearly, the Casiño Group failed to carry the onus of proving the alleged
significant negative environmental impacts of the project. In comparison, RP
Energy presented several experts to refute the allegations of the Casiño Group.
As aptly and extensively discussed by the appellate court:
Petitioners 120 presented three (3) witnesses, namely, Palatino,
Hermoso, and Lacbain, all of whom are not experts on the CFB
technology or even on environmental matters. Petitioners did not present
any witness from Morong or Hermosa. Palatino, a former freelance writer
and now a Congressman representing the Kabataan Partylist,
with a degree of BS Education major in Social Studies, admitted that he
is not a technical expert. Hermoso, a Director of the PREDA foundation
which is allegedly involved on environmental concerns, and a member of
Greenpeace, is not an expert on the matter subject of this case. He
is a graduate of BS Sociology and a practicing business director involved
in social development and social welfare services. Lacbain, incumbent
Vice-Governor of the Province of Zambales, an accounting graduate
with a Master in Public Administration, was a former Banco Filipino teller,
entertainment manager, disco manager, marketing manager and college
instructor, and is also not an expert on the CFB technology. Lacbain also
admitted that he is neither a scientist nor an expert on matters of the
environment.
Petitioners cited various scientific studies or articles and websites culled
from the internet. However, the said scientific studies and articles
including the alleged Key Observations and Recommendations on the
EIS of the Proposed RPE Project by Rex Victor O. Cruz (Exhibit
"DDDDD") attached to the Petition, were not testified to by an expert
witness, and are basically hearsay in nature and cannot be given
probative weight. The article purportedly written by Rex Victor O. Cruz
was not even signed by the said author, which fact was confirmed by
Palatino.
Petitioners' witness, Lacbain, admitted that he did not personally conduct
any study on the environmental or health effects of acoal-fired power
plant, but only attended seminars and conferences pertaining to climate
change; and that the scientific studies mentioned in the penultimate
whereas clause of Resolution No. 2011-149 (Exhibit "AAAAA") of
the Sangguniang Panlalawigan of Zambales is based on what he read
on the internet, seminars he attended and what he heard from unnamed
experts in the field of environmental protection.
In his Judicial Affidavit (Exhibit "HHHHH"), Palatino stated that he was
furnished by the concerned residents the Key Observations and
Recommendations on the EIS of Proposed RPE Project by Rex Victor O.
Cruz, and that he merely received and read the five (5) scientific studies
and articles which challenge the CFB technology. Palatino also testified
that: he was only furnished by the petitioners copies of the studies
mentioned in his Judicial Affidavit and he did not participate in the
execution, formulation or preparation of any of the said documents; he
does not personally know Rex Cruz or any of the authors of the studies
included in his Judicial Affidavit; he did not read other materials about
coal-fired power plants; he is not aware of the acceptable standards as
far as the operation of a coal-fired power plant is concerned; petitioner
Velarmino was the one who furnished him copies of the documents in
reference to the MOU and some papers related to the case; petitioner
Peralta was the one who e-mailed to him the soft copy of all the
documents [letters (a) to (o) of his Judicial Affidavit], except the LGU
Resolutions; and he has never been at the actual Power Plant project
site. It must be noted that petitioners Velarmino and Peralta were never
presented as witnesses in this case. In addition, Palatino did not identify
the said studies but simply confirmed that the said studies were attached
to the Petition.
Indeed, under the rules of evidence, a witness can testify only to those
facts which the witness knows of his or her personal knowledge, that is,
which are derived from the witness' own perception.
Concomitantly, a witness may not testify on matters which he or she
merely learned from others either because said witness was told or read
or heard those matters. Such testimony is considered hearsay and may
not be received as proof of the truth of what the witness has learned.
This is known as the hearsay rule. Hearsay is not limited to oral
testimony or statements; the general rule that excludes hearsay as
evidence applies to written, as well as oral statements. There are several
exceptions to the hearsay rule under the Rules of Court, among which
are learned treatises under Section 46 of Rule 130, viz.:
 "SEC. 46. Learned treatises. — A published treatise, periodical or
pamphlet on a subject of history, law, science, or art is admissible
as tending to prove the truth of a matter stated therein if the court
takes judicial notice, or a witness expert in the subject testifies,
that the writer of the statement in the treatise, periodical or
pamphlet is recognized in his profession or calling as expert in the
subject."
The alleged scientific studies mentioned in the Petition cannot be
classified as learned treatises. We cannot take judicial notice of the
same, and no witness expert in the subject matter of this case testified,
that the writers of the said scientific studies are recognized in their
profession or calling as experts in the subject.
THacES

In stark contrast, respondent RP Energy presented several witnesses on

the CFB technology.
In his Judicial Affidavit, witness Wong stated that he obtained a Bachelor
of Science, Major in Mechanical Engineering from Worcester Polytechnic
Institute; he is a Consulting Engineer of Steam Generators of URS; he
was formerly connected with Foster Wheeler where he held the positions
of site commissioning engineer, testing engineer, instrumentation and
controls engineer, mechanical equipment department manager, director
of boiler performance and mechanical design engineering and pulverized
coal product director. He explained that: CFB stands for Circulating
Fluidized Bed; it is a process by which fuel is fed to the lower furnace
where it is burned in an upward flow of combustion air; limestone, which
is used as sulfur absorbent, is also fed to the lower furnace along with
the fuel; the mixture of fuel, ash, and the boiler bed sorbent material is
carried to the upper part of the furnace and into a cyclone separator; the
heavier particles which generally consist of the remaining uncombusted
fuel and absorbent material are separated in the cyclone separator and
are recirculated to the lower furnace to complete the combustion of any
unburned particles and to enhance SO2 capture by the sorbent; fly ash
and flue gas exit the cyclone and the fly ash is collected in the
electrostatic precipitator; furnace temperature is maintained in the range
of 800º to 900º C by suitable heat absorbing surface; the fuel passes
through a crusher that reduces the size to an appropriate size prior to
the introduction into the lower furnace along with the limestone; the
limestone is used as a SO2 sorbent which reacts with the sulfur oxides
to form calcium sulfate, an inert and stable material; air fans at the
bottom of the furnace create sufficient velocity within the steam
generator to maintain a bed of fuel, ash, and limestone mixture;
secondary air is also introduced above the bed to facilitate circulation
and complete combustion of the mixture; the combustion process
generates heat, which then heats the boiler feedwater flowing through
boiler tube bundles under pressure; the heat generated in the furnace
circuit turns the water to saturated steam which is further heated to
superheated steam; this superheated steam leaves the CFB boiler and
expands through a steam turbine; the steam turbine is directly connected
to a generator that turns and creates electricity; after making its way
through the steam turbine, the low-pressure steam is exhausted
downwards into a condenser; heat is removed from the steam, which
cools and condenses into water (condensate); the condensate is then
pumped back through a train of feedwater heaters to gradually increase
its temperature before this water is introduced to the boiler to start the
process all over again; and CFB technology has advantages over
pulverized coal firing without backend cleanup systems, i.e., greater fuel
flexibility, lower SO2 and NOx emissions. Moreover, Wong testified, inter
alia, that: CFBs have a wider range of flexibility so they can
environmentally handle a wider range of fuel constituents, mainly the
constituent sulfur; and is capable of handling different types of coal
within the range of the different fuel constituents; since CFB is the newer
technology than the PC or stalker fire, it has better environmental
production; 50 percent of the electric generation in the United States is
still produced by coal combustion; and the CFB absorbs the sulfur
dioxide before it is emitted; and there will be a lower percentage of
emissions than any other technology for the coal.
In his Judicial Affidavit, Sarrki, stated that: he is the Chief Engineer for
Process Concept in Foster Wheeler; he was a Manager of Process
Technology for Foster Wheeler from 1995 to 2007; and he
holds a Master of Science degree in Chemical Engineering. He
explained that: CFB boilers will emit PAHs but only in minimal amounts,
while BFB will produce higher PAH emissions; PAH is anatural product
of any combustion process; even ordinary burning, such as cooking or
driving automobiles, will have some emissions that are not considered
harmful; it is only when emissions are of a significant level that damage
may be caused; a CFB technology has minimal PAH emissions; the high
combustion efficiency of CFB technology, due to long residence time of
particles inside the boiler, leads to minimal emissions of PAH; other
factors such as increase in the excess air ratio[,] decrease in Ca/S, as
well as decrease in the sulfur and chlorine contents of coal will likewise
minimise PAH production; and CFB does not cause emissions beyond
scientifically acceptable levels. He testified, inter alia, that: the CFB
technology is used worldwide; they have a 50% percent share of CFB
market worldwide; and this will be the first CFB by Foster Wheeler in the
Philippines; Foster Wheeler manufactures and supplies different type[s]
of boilers including BFB, but CFB is always applied on burning coal, so
they do not apply any BFB for coal firing; CFB has features which have
much better combustion efficiency, much lower emissions and it is more
effective as aboiler equipment; the longer the coal stays in the
combustion chamber, the better it is burned; eight (8) seconds is already
beyond adequate but it keeps a margin: in CFB technology, combustion
technology is uniform throughout the combustion chamber; high velocity
 is used in CFB technology, that is vigorous mixing or turbulence;
turbulence is needed to get contact between fuel and combustion air;
and an important feature of CFB is air distribution.
In his Judicial Affidavit, Ouano stated that: he is a licensed Chemical
Engineer, Sanitary Engineer and Environmental Planner in the
Philippines; he is also a chartered Professional Engineer in Australia
and a member of the colleges of environmental engineers and chemical
engineers of the Institution of Engineers (Australia); he completed his
Bachelor in Chemical Engineering in 1970, Master of Environmental
Engineering in 1972 and Doctor of Environmental Engineering in 1974;
he also graduated from the University of Sydney Law School with the
degree of Master of Environmental Law in 2002 and PhD in Law from
Macquarie University in 2007. He explained in his Judicial Affidavit that:
the impacts identified and analyzed in the EIA process are all potential or
likely impacts; there are a larger number of EIA techniques for predicting
the potential environmental impacts; it is important to note that all those
methods and techniques are only for predicting the potential
environmental impacts, not the real impacts; almost all environmental
systems are non-linear and they are subject to chaotic behavior that
even the most sophisticated computer could not predict accurately; and
the actual or real environmental impact could only be established when
the project is in actual operation. He testified, inter alia, that: the higher
the temperature the higher the nitrous oxide emitted; in CFB technology,
the lower the temperature, the lower is the nitrogen oxide; and it still
has a nitrogen oxide but not as high as conventional coal; the CFB is the
boiler; from the boiler itself, different pollution control facilities are going
to be added; and for the overall plant with the pollution control facilities,
the particulate matters, nitrogen oxide and sulfur dioxide are under
control. (Citations omitted) 121 IDcAHT

We also note that RP Energy controverted in detail the afore-summarized

allegations of the Casiño Group on the four areas of environmental damage that
will allegedly occur upon the construction and operation of the power plant:
1. On thermal pollution of coastal waters.
As to the extent of the expected rise in water temperature once the power plant is
operational, Ms. Mercado stated in her Judicial Affidavit thus:
Q: What was the result of the Thermal Plume Modeling that was
conducted for RP Energy?
A: The thermal dispersion modeling results show that largest warming
change (0.95ºC above ambient) is observed in the shallowest (5
m) discharge scenario. The warmest surface temperature change
for the deepest (30 m) scenario is 0.18ºC. All the simulated
scenarios comply with the DAO 90-35 limit for temperature rise of
3ºC within the defined 70 x 70 m mixing zone. The proposed
 power plant location is near the mouth of Subic Bay, thus the tidal
currents influence the behavior of thermal discharge plume. Since
the area is well-flushed, mixing and dilution of the thermal
discharge is expected.
It also concluded that corals are less likely to be affected by the cooling
water discharge as corals may persist in shallow marine waters with
temperatures ranging from 18ºC to 36ºC. The predicted highest
temperature of 30.75ºC, from the 0.95ºC increase in ambient in the
shallowest (5 m) discharge scenario, is within this range. 122
In the same vein, Dr. Ouano stated in his Judicial Affidavit:
Q: In page 41, paragraph 99 of the Petition, it was alleged that: ". .
. a temperature change of 1ºC to 2ºC can already affect the
metabolism and other biological functions of aquatic organisms
such as mortality rate and reproduction." What is your expert
opinion, if any, on this matter alleged by the Petitioners?
A: Living organisms have proven time and again that they are very
adaptable to changes in the environment. Living organisms have
been isolated in volcanic vents under the ocean living on the
acidic nutrient soup of sulfur and other minerals emitted by the
volcano to sub-freezing temperature in Antarctica. As a general
rule, metabolism and reproductive activity [increase] with
temperature until a maximum is reached after which [they
decline]. For this reason, during winter, animals hibernate and
plants become dormant after shedding their leaves. It is on the
onset of spring that animals breed and plants bloom when the air
and water are warmer. At the middle of autumn when the
temperature drops to single digit, whales, fish, birds and other
living organisms, which are capable of migrating, move to the
other end of the globe where spring is just starting. In the
processes of migration, those migratory species have to cross the
tropics where the temperature is not just one or two degrees
warmer but 10 to 20 degrees warmer. DaCEIc

When discussing the impact of 1 to 2 degrees temperature change and

its impact on the ecosystem, the most important factors to consider are
— (1) Organism Type — specifically its tolerance to temperature change
(mammals have higher tolerance); (2) Base Temperature — it is the
temperature over the optimum temperature such that an increase will
result in the decline in number of the organisms; (3) Mobility or Space for
Migration (i.e., an aquarium with limited space or an open ocean that the
organism can move to a space more suited to [a] specific need, such as
the migratory birds); and (4) Ecosystem Complexity and Succession.
The more complex the ecosystem the more stable it is as succession
and adaptation [are] more robust.
 Normally, the natural variation in water temperature between early
morning to late afternoon could be several degrees (four to five degrees
centigrade and up to ten degrees centigrade on seasonal basis).
Therefore, the less than one degree centigrade change predicted by the
GHD modeling would have minimal impact. 123
On cross-examination, Dr. Guano further explained —
ATTY. AZURA:
. . . When you say Organism Type — you mentioned that mammals
have a higher tolerance for temperature change?
DR. OUANO:
Yes.
ATTY. AZURA:
What about other types of organisms, Dr. Ouano? Fish for example? HCSEIT

DR. OUANO:
Well, mammals have high tolerance because mammals are warm[-
]blooded. Now, when it comes to cold[-]blooded animals the
tolerance is much lower. But again when you are considering . . .
fish [e]specially in open ocean you have to remember that nature
by itself is . . . very brutal . . . where there is always the prey-
predator relationship. Now, most of the fish that we have in open
sea [have] already a very strong adaptability mechanism. And in
fact, Kingman back in 1964 . . . studied the coal reef around the
gulf of Oman where the temperature variation on day to day basis
varied not by 1 degree to 2 degrees but by almost 12 degrees
centigrade. Now, in the Subic Bay area which when you're looking
at it between daytime variation, early dawn when it is cold, the air
is cold, the sea temperature, sea water is quite cold. Then by 3:00
o'clock in the afternoon it starts to warm up. So the variation [in
the] Subic Bay area is around 2 to 4 degrees by natural variation
from the sun as well as from the current that goes around it. So
when you are talking about what the report has said of around 1
degree change, the total impact . . . . on the fishes will be minimal.
...
ATTY. AZURA:
. . . So, you said, Dr. Ouano, that fish, while they have a much lower
tolerance for temperature variation, are still very adaptable. What
about other sea life, Dr. Ouano, for example, sea reptiles?
DR. OUANO:
That's what I said. The most sensitive part of the marine ecology is
physically the corals because corals are non-migratory, they are
fix[ed]. Second[ly] . . . corals are also highly dependent on
sunlight penetration. If they are exposed out of the sea, they die; if
they are so deep, they die. And that is why I cited Kingman in his
studies of coral adaptability [in] the sea of Oman where there
was a very high temperature variation, [they] survived.
ATTY. AZURA:
Would you be aware, Dr. Ouano, if Kingman has done any studies in
Subic Bay?
DR. OUANO:
Not in Subic Bay but I have reviewed the temperature variation, natural
temperature variation from the solar side, the days side as well as
the seasonal variation. There are two types of variation since
temperatures are very critical. One is the daily, which means from
early morning to around 3:00 o'clock, and the other one is
seasonal variation because summer, December,
January, February are the cold months and then by April, May we
are having warm temperature where the temperature goes around
32-33 degrees; Christmas time, it drops to around 18 to 20
degrees so it[']s a variation of around seasonal variation of 14
degrees although some of the fish might even migrate and that is
why I was trying to put in corals because they are the ones that
are really fix[ed]. They are not in a position to migrate in this
season. CTEDSI

ATTY. AZURA:
To clarify. You said that the most potentially sensitive part of the
ecosystem would be the corals.
DR. OUANO:
Or threatened part because they are the ones [that] are not in a position
to migrate.
ATTY. AZURA:
In this case, Dr. Ouano, with respect to this project and the projected
temperature change, will the corals in Subic Bay be affected?
DR. OUANO:
As far as the outlet is concerned, they have established it outside the
coral area. By the time it reaches the coral area the temperature
variation, as per the GHD study is very small, it[']s almost
negligible.
 ATTY. AZURA:
Specifically, Dr. Ouano, what does negligible mean, what level of
variation are we talking about?
DR. OUANO:
If you are talking about a thermometer, you might be talking about,
normally about .1 degrees centigrade. That's the one that you
could more or less ascertain. . . .
ATTY. AZURA:
Dr. Ouano, you mentioned in your answer to the same question,
Question 51, that there is a normal variation in water temperature.
In fact, you said there is a variation throughout the day, daily and
also throughout the year, seasonal. Just to clarify, Dr. Ouano.
When the power plant causes the projected temperature change
of 1 degree to 2 degrees Celsius this will be in addition to existing
variations? What I mean, Dr. Ouano, just so I can understand,
how will that work? How will the temperature change caused by
the power plant work with the existing variation?
DR. OUANO:
There is something like what we call the zonal mixing. This is an area of
approximately one or two hectares where the pipe goes out, the
hot water goes out. So that . . ., we have to accept . . . that
[throughout it] the zone will be a disturb[ed] zone. After that one or
two hectares park the water temperature is well mixed [so] that
the temperature above the normal existing variation now
practically drops down to almost the normal level. 124
2. On air pollution due to dust and combustion gases.
To establish that the emissions from the operation of the power plant would be
compliant with the standards under the Clean Air Act,125 Ms. Mercado stated in
her Judicial Affidavit thus:
271. Q: What was the result of the Air Dispersion Modeling that was
conducted for RP Energy?
A: The Air Dispersion Modeling predicted that the Power Plant Project
will produce the following emissions, which [are] fully compliant
with the standards set by DENR:

Predicted GLC 126 for 1-hr National Ambient Air Quality

averaging period Guideline Values
SO2 45.79 µg/Nm3 340 µg/Nm3
NO2 100.8 µg/Nm3 260 µg/Nm33
CO 10 µg/Nm3 35 µg/Nm3

Predicted GLC for 8-hr National Ambient Air Quality

averaging period Guideline Values

CO 0.19 mg/ncm 10 µg/Nm3

Predicted GLC for 24-hr National Ambient Air Quality

averaging period Guideline Values

SO2 17.11 µg/Nm3 180 µg/Nm3

NO2 45.79 µg/Nm3 150 µg/Nm3

Predicted GLC for 1-yr National Ambient Air Quality

averaging period Guideline Values

SO2 6.12 µg/Nm3 80 µg/Nm3

NO2 No standard -
CO No standard -

272. Q: What other findings resulted from the Air Dispersion

Modeling, if any?
A: It also established that the highest GLC to Clean Air Act Standards
ratio among possible receptors was located 1.6 km North
NorthEast ("NNE") of the Power Plant Project. Further, this ratio
was valued only at 0.434 or less than half of the upper limit set
out in the Clean Air Act. This means that the highest air ambient
quality disruption will happen only 1.6 km NNE of the Power Plant
Project, and that such disruption would still be compliant with the
standards imposed by the Clean Air Act. 127
The Casiño Group argued, however, that, as stated in the EIS, during upset
conditions, significant negative environmental impact will result from the
emissions. This claim was refuted by RP Energy's witness during cross-
examination:
ATTY. AZURA:
If I may refer you to another page of the same annex, Ms. Mercado,
that's page 202 of the same document, the August 2012. Fig. 2-
78 appears to show, there's a Table, Ms. Mercado, the first table,
 the one on top appears to show a comparison in normal and
upset conditions. I noticed, Ms. Mercado, that the black bars are
much higher than the bars in normal condition. Can you state
what this means?
MS. MERCADO:
It means there are more emissions that could potentially be released
when it is under upset condition.
ATTY. AZURA:
I also noticed, Ms. Mercado, at the bottom part of this chart there are
Receptor IDs, R1, R2, R3 and so forth and on page 188 of this
same document, Annex "9-Mercado," there is a list identifying
these receptors, for example, Receptor 6, Your Honor, appears to
have been located in Olongapo City, Poblacion. Just so I can
understand, Ms. Mercado, does that mean that if upset
condition[s] were to occur, the Olongapo City Poblacion will be
affected by the emissions?
MS. MERCADO:
All it means is that there will be higher emissions and a higher ground
concentration. But you might want to also pay attention to the "y
axis," it says there GLC/CAA [Ground Level Concentration/Clean
Air Act limit]. So it means that even under upset conditions. . . say
for R6, the ground level concentration for upset condition is still
around .1 or 10% percent only of the Clean Air Act limit. So it's
still much lower than the limit.
ATTY. AZURA:
But that would mean, would it not, Ms. Mercado, that in the event of
upset conditions[,] emissions would increase in the Olongapo City
Poblacion?
MS. MERCADO:
Not emissions will increase. The emissions will be the same but the
ground level concentration, the GLC, will be higher if you compare
normal versus upset. But even if it[']s under upset conditions, it is
still only around 10% percent of the Clean Air Act Limit.
xxx xxx xxx
J. LEAGOGO:
So you are trying to impress upon this Court that even if the plant is in
an upset condition, it will emit less than what the national
standards dictate?
MS. MERCADO:
 Yes, Your Honor. 128
With respect to the claims that the power plant will release dangerous PAHs
an CO, Engr. Sarrki stated in his Judicial Affidavit thus:
Q: In page 42, paragraph 102 of the Petition, the Petitioners alleged that
Volatile Organic Compounds ("VOC") specifically Polycyclic
Aromatic Hydrocarbon ("PAH") will be emitted even by CFB
boilers. What can you say about this?
A: Actually, the study cited by the Petitioners does not apply to the
present case because it does not refer to CFB technology. The
study refers to a laboratory-scale tubular Bubbling Fluidized Bed
("BFB") test rig and not a CFB. CFB boilers will emit PAHs but
only in minimal amounts. Indeed, a BFB will produce higher PAH
emissions.
xxx xxx xxx
Q: Why can the study cited by Petitioners not apply in the present case?
A: The laboratory-scale BFB used in the study only has one (1) air
injection point and does not replicate the staged-air combustion
process of the CFB that RP Energy will use. This staged-air
process includes the secondary air. Injecting secondary air into
the system will lead to more complete combustion and inhibits
PAH production. There is a study entitled "Polycyclic Aromatic
Hydrocarbon (PAH) Emissions from a Coal-Fired Pilot FBC
System" by Kunlei Liu, Wenjun Han, Wei-Ping Pan, John T. Riley
found in the Journal of Hazardous Materials B84 (2001) where the
findings are discussed. IcHAaS

Also, the small-scale test rig utilized in the study does not simulate the
process conditions (hydrodynamics, heat transfer characteristics, solid
and gas mixing behavior, etc.) seen in a large scale utility boiler, like
those which would be utilized by the Power Plant Project.
xxx xxx xxx
Q: Aside from residence time of particles and secondary air, what other
factors, if any, reduce PAH production?
A: Increase in the excess air ratio will also minimize PAH production.
Furthermore, decrease in Calcium to Sulfur moral ratio ("Ca/S"),
as well as decrease in the sulfur and chlorine contents of coal will
likewise minimize PAH production. This is also based on the
study entitled "Polycyclic Aromatic Hydrocarbon (PAH) Emissions
from a Coal-Fired Pilot FBC System" by Kunlei Liu, Wenjun Han,
Wei-Ping Pan, John T. Riley.
 In RP Energy's Power Plant Project, the projected coal to be utilized has
low sulfur and chlorine contents minimizing PAH production. Also, due to
optimum conditions for the in-furnace SO capture, the Ca/S will be
2

relatively low, decreasing PAH production.

Q: In paragraph 104 of the Petition, it was alleged that "Carbon
monoxide (CO), a poisonous, colorless and odorless gas is also
produced when there is partial oxidation or when there is not
enough oxygen (O ) to form carbon dioxide (CO )." What can you
2 2

say about this?

A: CFB technology reduces the CO emissions of the Power Plant Project
to safe amounts. In fact, I understand that the projected emissions
level of the Power Plant Project compl[ies] with the International
Finance Corporation ("IFC") standards. Furthermore,
characteristics of CFB technology such as long residence time,
uniform temperature and high turbulence provide an effective
combustion environment which results [in] lower and safer CO
emissions.
Q: I have no further questions for you at the moment. Is there anything
you wish to add to the foregoing?
A: Yes. PAH is a natural product of ANY combustion process. Even
ordinary burning, such as cooking or driving automobiles, will
have some emissions that are not considered harmful. It is only
when emissions are of a significant level that damage may be
caused.
Given that the Power Plant Project will utilize CFB technology, it will
have minimal PAH emissions. The high combustion efficiency of CFB
technology, due to the long residence time of particles inside the boiler,
leads to the minimal emissions of PAH. Furthermore, other factors such
as increase in the excess air ratio, decrease in Ca/S, as well as
decrease in the sulfur and chlorine contents of coal will likewise minimise
PAH production. CFB does not cause emissions beyond scientifically
acceptable levels, and we are confident it will not result in the damage
speculated by the Petitioners. 129
3. On water pollution from toxic coal combustion waste.
With regard to the claim that coal combustion waste produced by the plant will
endanger the health of the inhabitants nearby, Dr. Ouano stated in his Judicial
Affidavit thus:
Q: In page 43, paragraph 110 of the Petition, it was alleged that: "[s]olid
coal combustion waste is highly toxic and is said to cause birth
defects and cancer risks among others . . . ." What is your expert
opinion, if any, on this matter alleged by the Petitioners?
 A: Coal is geologically compressed remains of living organisms that
roamed the earth several million years ago. In the process of
compression, some of the minerals in the soil, rocks or mud, the
geologic media for compression, are also imparted into the
compressed remains. If the compressing media of mud,
sediments and rocks contain high concentration of mercury,
uranium, and other toxic substances, the coal formed will likewise
contain high concentration of those substances. If the
compressing materials have low concentration of those
substances, then the coal formed will likewise have low
concentration of those substances. If the coal does not contain
excessive quantities of toxic substances, the solid residues are
even used in agriculture to supply micronutrients and improve the
potency of fertilizers. It is used freely as a fill material in roads and
other construction activities requiring large volume of fill and as
additive in cement manufacture. After all, diamonds that people
love to hang around their necks and keep close to the chest are
nothing more than the result of special geologic action, as those
in volcanic pipes on coal. 130
RP Energy further argued, a matter which the Casiño Group did not rebut or
refute, that the waste generated by the plant will be properly handled, to wit: aDcEIH

4.1.49 When coal is burned in the boiler furnace, two by-products are
generated - bottom and fly ash. Bottom ash consists of large and fused
particles that fall to the bottom of the furnace and mix with the bed
media. Fly ash includes fine-grained and powdery particles that are
carried away by flue gas into the electrostatic precipitator, which is then
sifted and collected. These by-products are non-hazardous materials. In
fact, a coal power plant's Fly Ash, Bottom Ash and Boiler Slag have
consequent beneficial uses which "generate significant environmental,
economic, and performance benefits." Thus, fly ash generated during
the process will be sold and transported to cement manufacturing
facilities or other local and international industries.
4.1.50 RP Energy shall also install safety measures to insure that waste
from burning of coal shall be properly handled and stored.
4.1.51 Bottom ash will be continuously collected from the furnace and
transferred through a series of screw and chain conveyors and bucket
elevator to the bottom ash silo. The collection and handling system is
enclosed to prevent dust generation. Discharge chutes will be installed
at the base of the bottom ash silo for unloading. Open trucks will be used
to collect ash through the discharge chutes. Bottom ash will be sold, and
unsold ash will be stored in ash cells. A portion of the bottom ash will be
reused as bed material through the installation of a bed media
regeneration system (or ash recycle). Recycled bottom ash will be
 sieved using a vibrating screen and transported to a bed material surge
bin for re-injection into the boiler.
4.1.52 Fly ash from the electrostatic precipitator is pneumatically
removed from the collection hopper using compressed air and
transported in dry state to the fly ash silo. Two discharge chutes will be
installed at the base of the fly ash silo. Fly ash can either be dry-
transferred through a loading spout into an enclosed lorry or truck for
selling, re-cycling, or wet-transferred through awet unloader into open
dump trucks and transported to ash cells. Fly ash discharge will operate
in timed cycles, with an override function to achieve continuous
discharge if required. Fly ash isolation valves in each branch line will
prevent leakage and backflow into non-operating lines.
4.1.53 Approximately 120,000m2 will be required for the construction of
the ash cell. Ash will be stacked along the sloping hill, within a grid of
excavations (i.e., cells) with a 5m embankment. Excavated soils will be
used for embankment construction and backfill. To prevent infiltration [of]
ash deposits into the groundwater, a clay layer with minimum depth of
400mm will be laid at the base of each cell. For every 1-m depth of ash
deposit, a 10-cm soil backfill will be applied to immobilize ash and
prevent migration via wind. Ash cell walls will be lined with high-density
polyethylene to prevent seepage. This procedure and treatment method
is in fact suitable for disposal of toxic and hazardous wastes although fly
ash is not classified as toxic and hazardous materials. 131 SIDEaA

Anent the claims that the plant is susceptible to earthquake and landslides, Dr.
Ouano testified thus:
J. LEAGOGO:
In terms of fault lines, did you study whether this project site is in any
fault line?
DR. OUANO:
There are some fault lines and in fact, in the Philippines it is very difficult
to find an area except Palawan where there is no fault line within
20 to 30 [kilometers]. But then fault lines as well as earthquakes
really [depend] upon your engineering design. I mean, Sto.
Tomas University has withstood all the potential earthquakes we
had in Manila[,] even sometimes it[']s intensity 8 or so because
the design for it back in 1600 they are already using what we call
floating foundation. So if the engineering side for it[,] technology is
there to withstand the expected fault line [movement].
J. LEAGOGO:
What is the engineering side of the project? You said UST is floating.
DR. OUANO:
 The foundation, that means to say you don't break. . .
J. LEAGOGO:
Floating foundation. What about this, what kind of foundation?
DR. OUANO:
It will now depend on their engineering design, the type of equipment. . .
J. LEAGOGO:
No, but did you read it in their report?
DR. OUANO:
It[']s not there in their report because it will depend on the supplier, the
equipment supplier.
J. LEAGOGO:
So it[']s not yet there?
DR. OUANO:
It[']s not yet there in the site but it is also covered in our Building Code
what are the intensities of earthquakes expected of the different
areas in the Philippines.
J. LEAGOGO:
Have you checked our geo-hazard maps in the Philippines to check on
this project site?
DR. OUANO:
Yes. It is included there in the EIA Report.
J. LEAGOGO:
It[']s there?
DR. OUANO:
It[']s there. 132
4. On acid deposition in aquatic and terrestrial ecosystems.
Relative to the threat of acid rain, Dr. Ouano stated in his Judicial Affidavit; thus:
Q: In page 44, paragraph 114 of the Petition, it was alleged that "the
coal-fired power plant will release 1,888 tons of nitrous oxides
(NO ) per year and 886 tons of sulfur dioxide (SO ) per year.
X 2

These oxides are the precursors to the formation of sulfuric acid

and nitric acid which are responsible for acid deposition." What is
your expert opinion on this matter alleged by the Petitioners?
 A: NO is found in the air, water and soil from natural processes such as
2

lightning, bacterial activities and geologic activities as well as from

human activities such as power plants and fertilizer usage in
agriculture. SO is also found in air, water and soil from bacterial,
2

geologic and human activities.

NO and SO in the air are part of the natural nitrogen and sulfur cycle to
2 2

widely redistribute and recycle those essential chemicals for use by

plants. Without the NO and SO in the air, plant and animal life would be
2 2

limited to small areas of this planet where nitrogen and sulfur are found
in abundance. With intensive agricultural practices, nitrogen and sulfur
are added in the soil as fertilizers.HCDaAS

Acid rain takes place when the NO and SO concentration are excessive
2 2

or beyond those values set in the air quality standards. NO and SO in

2 2

the air in concentrations lower than those set in the standards have
beneficial effect to the environment and agriculture and are commonly
known as micronutrients. 133
On clarificatory questions from the appellate court, the matter was further
dissected thus:
J. LEAGOGO:
. . . The project will release 1,888 tons of nitrous oxide per year. And he
said, yes; that witness answered, yes, it will produce 886 tons of
sulfur dioxide per year. And he also answered yes, that these
oxides are the precursors to the formation of sulfuric acid and
nitric acid. Now my clarificatory question is, with this kind of
releases there will be acid rain?
DR. OUANO:
No.
J. LEAGOGO:
Why?
DR. OUANO:
Because it[']s so dilute[d].
J. LEAGOGO:
It will?
DR. OUANO:
Because the acid concentration is so dilute[d] so that it is not going to
cause acid rain.
J. LEAGOGO:
The acid concentration is so diluted that it will not cause acid rain?
DR. OUANO:
Yes.
J. LEAGOGO:
What do you mean it[']s so diluted? How will it be diluted?
DR. OUANO:
Because it[']s going to be mixed with the air in the atmosphere; diluted
in the air in the atmosphere. And besides this 886 tons, this is not
released in one go, it is released almost throughout the year.
J. LEAGOGO:
You also answered in Question No. 61, "acid rain takes place when
the NO2 AND SO2 concentration are excessive." So when do you
consider it as excessive?
DR. OUANO:
That is something when you are talking about acid. . .
J. LEAGOGO:
In terms of tons of nitrous oxide and tons of sulfur oxide, when do you
consider it as excessive?
DR. OUANO:
It is in concentration not on tons weight, Your Honor.
J. LEAGOGO:
In concentration?
DR. OUANO:
In milligrams per cubic meter, milligrams per standard cubic meter.
J. LEAGOGO:
So being an expert, what will be the concentration of this kind of 1,888
tons of nitrous oxide? What will be the concentration in terms of
your. . .?
DR. OUANO:
If the concentration is in excess of something like 8,000 micrograms per
standard cubic meters, then there is already potential for acid
rain.
J. LEAGOGO: HEITAD
 I am asking you, Dr. Ouano, you said it will release 1,888 tons of nitrous
oxide?
DR. OUANO:
Yes.
J. LEAGOGO:
In terms of concentration, what will that be?
DR. OUANO:
In terms of the GHD study that will result [in] 19 milligrams per standard
cubic meters and the time when acid rain will start [is when the
concentration gets] around 8,000 milligrams per standard cubic
meters. So we have 19 compared to 8,000. So we are very, very
safe.
J. LEAGOGO:
What about SO2?
DR. OUANO:
SO2, we are talking about . . . you won't mind if I go to my codigo. For
sulfur dioxide this acid rain most likely will start at around 7,000
milligrams per standard cubic meter but then . . . sorry, it[']s
around 3,400 micrograms per cubic meter. That is the
concentration for sulfur dioxide, and in our plant it will be around
45 micrograms per standard cubic meter. So the acid rain will
start at 3,400 and the emission is estimated here to result to
concentration of 45.7 micrograms.
J. LEAGOGO:
That is what GHD said in their report.
DR. OUANO:
Yes. So that is the factor of . . . safety that we have. 134

Apart from the foregoing evidence, we also note that the above and other
environmental concerns are extensively addressed in RP Energy's
Environmental Management Plan or Program (EMP). The EMP is "a section in
the EIS that details the prevention, mitigation, compensation, contingency and
monitoring measures to enhance positive impacts and minimize negative impacts
and risks of aproposed project or undertaking." 135 One of the conditions of the
ECC is that RP Energy shall strictly comply with and implement its approved
EMP. The Casiño Group failed to contest, with proof, the adequacy of the
mitigating measures stated in the aforesaid EMP. DAHEaT
In upholding the evidence and arguments of RP Energy, relative to the lack of
proof as to the alleged significant environmental damage that will be caused by
the project, the appellate court relied mainly on the testimonies of experts, which
we find to be in accord with judicial precedents. Thus, we ruled in one case:
Although courts are not ordinarily bound by testimonies of experts, they
may place whatever weight they choose upon such testimonies in
accordance with the facts of the case. The relative weight and
sufficiency of expert testimony is peculiarly within the province of the trial
court to decide, considering the ability and character of the witness, his
actions upon the witness stand, the weight and process of the reasoning
by which he has supported his opinion, his possible bias in favor of the
side for whom he testifies, the fact that he is a paid witness, the relative
opportunities for study and observation of the matters about which he
testifies, and any other matters which serve to illuminate his statements.
The opinion of the expert may not be arbitrarily rejected; it is to be
considered by the court in view of all the facts and circumstances in the
case and when common knowledge utterly fails, the expert opinion may
be given controlling effects (20 Am. Jur., 1056-1058). The problem of the
credibility of the expert witness and the evaluation of his testimony is left
to the discretion of the trial court whose ruling thereupon is not
reviewable in the absence of an abuse of that discretion. 136
Hence, we sustain the appellate court's findings that the Casiño Group failed to
establish the alleged grave environmental damage which will be caused by the
construction and operation of the power plant.
In another vein, we, likewise, agree with the observations of the appellate court
that the type of coal which shall be used in the power plant has important
implications as to the possible significant negative environmental impacts of the
subject project. 137 However, there is no coal supply agreement, as of yet,
entered into by RP Energy with a third-party supplier. In accordance with the
terms and conditions of the ECC and in compliance with existing environmental
laws and standards, RP Energy is obligated to make use of the proper coal type
that will not cause significant negative environmental impacts.
The alleged negative environmental
assessment of the project by experts in a
report generated during the social
acceptability consultations
The Casiño Group also relies heavily on a report on the social acceptability
process of the power plant project to bolster its claim that the project will cause
grave environmental damage. We purposely discuss this matter in this separate
subsection for reasons which will be made clear shortly.
But first we shall present the pertinent contents of this report. SCEDaT
According to the Casiño Group, from December 7 to 9, 2011, the SBMA
conducted social acceptability policy consultations with different stakeholders on
RP Energy's proposed 600 MW coal plant project at the Subic Bay Exhibition and
Convention Center. The results thereof are contained in a document prepared by
SBMA entitled "Final Report: Social Acceptability Process for RP Energy, Inc.'s
600-MW Coal Plant Project" (Final Report). We note that SBMA adopted the
Final Report as a common exhibit with the Casiño Group in the course of the
proceedings before the appellate court.
The Final Report stated that there was a clear aversion to the concept of a coal-
fired power plant from the participants. Their concerns included environmental,
health, economic and socio-cultural factors. Pertinent to this case is the alleged
assessment, contained in the Final Report, of the potential effects of the project
by three experts: (1) Dr. Rex Cruz (Dr. Cruz), Chancellor of the University of the
Philippines, Los Baños and a forest ecology expert, (2) Dr. Visitacion
Antonio, a toxicologist, who related information as to public health; and (3) Andre
Jon Uychiaco, a marine biologist.
The Final Report stated these experts' alleged views on the project, thus:
IV. EXPERTS' OPINION
xxx xxx xxx
The specialists shared the judgment that the conditions were not
present to merit the operation of a coal-fired power plant, and to
pursue and carry out the project with confidence and assurance
that the natural assets and ecosystems within the Freeport area
would not be unduly compromised, or that irreversible damage
would not occur and that the threats to the flora and fauna within
the immediate community and its surroundings would be
adequately addressed.
The three experts were also of the same opinion that the proposed coal
plant project would pose a wide range of negative impacts on the
environment, the ecosystems and human population within the
impact zone.
The specialists likewise deemed the Environment Impact Assessment
(EIA) conducted by RPEI to be incomplete and limited in scope
based on the following observations:
i. The assessment failed to include areas 10km. to 50km. from the
operation site, although according to the panel, sulfur
emissions could extend as far as 40-50 km. SIaHTD

ii. The EIA neglected to include other forests in the Freeport in its
scope and that there were no specific details on the
protection of the endangered flora and endemic fauna in
 the area. Soil, grassland, brush land, beach forests and
home gardens were also apparently not included in the
study.
iii. The sampling methods used in the study were limited and
insufficient for effective long-term monitoring of surface
water, erosion control and terrestrial flora and fauna.
The specialists also discussed the potential effects of an operational
coal-fired power plant [on] its environs and the community therein.
Primary among these were the following:
i. Formation of acid rain, which would adversely affect the trees
and vegetation in the area which, in turn, would diminish
forest cover. The acid rain would apparently worsen the
acidity of the soil in the Freeport.
ii. Warming and acidification of the seawater in the bay, resulting
in the bio-accumulation of contaminants and toxic materials
which would eventually lead to the overall reduction of
marine productivity.
iii. Discharge of pollutants such as Nitrous Oxide, Sodium Oxide,
Ozone and other heavy metals such as mercury and lead
to the surrounding region, which would adversely affect the
health of the populace in the vicinity.
V. FINDINGS
Based on their analyses of the subject matter, the specialists
recommended that the SBMA re-scrutinize the coal-fired power
plant project with the following goals in mind:
i. To ensure its coherence and compatibility to [the] SBMA
mandate, vision, mission and development plans, including
its Protected Area Management Plan;
ii. To properly determine actual and potential costs and benefits;
iii. To effectively determine the impacts on environment and
health; and
iv. To ensure a complete and comprehensive impacts zone study.
The specialists also urged the SBMA to conduct a Comprehensive Cost
and Benefit Analysis of the Proposed Coal Plant Project Relative
to Each Stakeholder Which Should Include the Environment As
Provider of Numerous Environmental Goods and Services.
They also recommended an Integrated/Programmatic Environmental
Impact Assessment to accurately determine the environmental
status of the Freeport ecosystem as basis and reference in
 evaluating future similar projects. The need
for amore Comprehensive Monitoring System for the Environment
and Natural Resources was also reiterated by the panel. 138
Of particular interest are the alleged key observations of Dr. Cruz on the EIS
prepared by RP Energy relative to the project:
Key Observations and Recommendations on the EIS of
Proposed RPE Project
Rex Victor O. Cruz
Based on SBMA SAP on December 7-9, 2011
1. The baseline vegetation analysis was limited only within the project
site and its immediate vicinity. No vegetation analysis was done in the
brushland areas in the peninsula which is likely to be affected in the
event acid rain forms due to emissions from the power plant.
2. The forest in the remaining forests in the Freeport was not considered
as impact zone as indicated by the lack of description of these forests
and the potential impacts the project might have on these forests. This
appears to be a key omission in the EIS considering that these forests
are well within 40 to 50 km away from the site and that there are studies
showing that the impacts of sulphur emissions can extend as far as 40 to
50 km away from the source.
3. There are 39 endemic fauna and 1 endangered plant species
(Molave) in the proposed project site. There will be a need to make sure
that these species are protected from being damaged permanently in
wholesale. Appropriate measures such as ex situconservation and
translocation if feasible must be implemented.
4. The Project site is largely in grassland interspersed with some trees.
These plants if affected by acid rain or by sulphur emissions may
disappear and have consequences on the soil properties and
hydrological processes in the area. Accelerated soil erosion and
increased surface runoff and reduced infiltration of rainwater into the soil.
5. The rest of the peninsula is covered with brushland but were never
included as part of the impact zone.
6. There are home gardens along the coastal areas of the site planted to
ornamental and agricultural crops which are likely to be affected by acid
rain.
7. There is also a beach forest dominated by
aroma, talisai and agoho which will likely be affected also by acid rain.
8. There are no Environmentally Critical Areas within the 1 km radius
from the project site. However, the Olongapo Watershed Forest
Reserve, a protected area is approximately 10 km southwest of the
project site. Considering the prevailing wind movement in the area, this
forest reserve is likely to be affected by acid rain if it occurs from the
emission of the power plant. This forest reserve is however not included
as part of the potential impact area.
9. Soil in the project site and the peninsula is thin and highly acidic and
deficient in NPK with moderate to severe erosion potential. The sparse
vegetation cover in the vicinity of the project site is likely a result of the
highly acidic soil and the nutrient deficiency. Additional acidity may result
from acid rain that may form in the area which could further make it
harder for the plants to grow in the area that in turn could exacerbate the
already severe erosion in the area.
10. There is a need to review the proposal to ensure that the proposed
project is consistent with the vision for the Freeport as enunciated in the
SBMA Master Plan and the Protected Area Management Plan. This will
reinforce the validity and legitimacy of these plans as a legitimate
framework for screening potential locators in the Freeport. It will also
reinforce the trust and confidence of the stakeholders on the
competence and authority of the SBMA that would translate in stronger
popular support to the programs implemented in the Freeport.
11. The EGF and Trust Fund (Table 5.13) should be made clear that the
amounts are the minimum amount and that adequate funds will be
provided by the proponent as necessary beyond the minimum amounts.
Furthermore the basis for the amounts allocated for the items (public
liability and rehabilitation) in Trust Fund and in EGF (tree planting and
landscaping, artificial reef establishment) must be clarified. The specific
damages and impacts that will be covered by the TF and EGF must also
be presented clearly at the outset to avoid protracted negotiations in the
event of actual impacts occurring in the future.
12. The monitoring plan for terrestrial flora and fauna is not clear on the
frequency of measurement. More importantly, the proposed method of
measurement (sampling transect) while adequate for estimating the
diversity of indices for benchmarking is not sufficient for long[-]term
monitoring. Instead, long[-]term monitoring plots (at least 1 hectare in
size) should be established to monitor the long[-]term impacts of the
project on terrestrial flora and fauna.EHSCcT

13. Since the proposed monitoring of terrestrial flora and fauna is limited
to the vicinity of the project site, it will be useful not only for mitigating
and avoiding unnecessary adverse impacts of the project but also for
improving management decisions if long[-]term monitoring plots for the
remaining natural forests in the Freeport are established. These plots will
also be useful for the study of the dynamic interactions of terrestrial flora
and fauna with climate change, farming and other human activities and
the resulting influences on soil, water, biodiversity, and other vital
ecosystem services in the Freeport. 139
We agree with the appellate court that the alleged statements by these experts
cannot be given weight because they are hearsay evidence. None of these
alleged experts testified before the appellate court to confirm the pertinent
contents of the Final Report. Noreason appears in the records of this case as to
why the Casiño Group failed to present these expert witnesses.
We note, however, that these statements, on their face, especially the
observations of Dr. Cruz, raise serious objections to the environmental
soundness of the project, specifically, the EIS thereof. It brings to fore the
question of whether the Court can, on its own, compel the testimonies of these
alleged experts in order to shed light on these matters in view of the right at stake
— not just damage to the environment but the health, well-being and, ultimately,
the lives of those who may be affected by the project.
The Rules of Procedure for Environmental Cases liberally provide the courts with
means and methods to obtain sufficient information in order to adequately protect
or safeguard the right to a healthful and balanced ecology. In Section 6 (1) 140 of
Rule 3 (Pre-Trial), when there is a failure to settle, the judge shall, among others,
determine the necessity of engaging the services of a qualified expert as afriend
of the court (amicus curiae). While, in Section 12 141 of Rule 7 (Writ
of Kalikasan), a party may avail of discovery measures: (1) ocular inspection and
(2) production or inspection of documents or things. The liberality of the Rules in
gathering and even compelling information, specifically with regard to the Writ
of Kalikasan, is explained in this wise:
[T]he writ of kalikasan was refashioned as a tool to bridge the gap
between allegation and proof by providing a remedy for would-be
environmental litigants to compel the production of information within the
custody of the government. The writ would effectively serve as a remedy
for the enforcement of the right to information about the environment.
The scope of the fact-finding power could be: (1) anything related to the
issuance, grant of a government permit issued or information controlled
by the government or private entity and (2) [i]nformation contained in
documents such as environmental compliance certificate (ECC) and
other government records. In addition, the [w]rit may also be employed
to compel the production of information, subject to constitutional
limitations. This function is analogous to a discovery measure, and may
be availed of upon application for the writ.142
AIECSD

Clearly, in environmental cases, the power to appoint friends of the court in order
to shed light on matters requiring special technical expertise as well as the power
to order ocular inspections and production of documents or things evince the
main thrust of, and the spirit behind, the Rules to allow the court sufficient leeway
in acquiring the necessary information to rule on the issues presented for its
resolution, to the end that the right to a healthful and balanced ecology may be
adequately protected. To draw a parallel, in the protection of the constitutional
rights of an accused, when life or liberty is at stake, the testimonies of witnesses
may be compelled as an attribute of the Due Process Clause. Here, where the
right to a healthful and balanced ecology of a substantial magnitude is at stake,
should we not tread the path of caution and prudence by compelling the
testimonies of these alleged experts?
After due consideration, we find that, based on the statements in the Final
Report, there is no sufficiently compelling reason to compel the testimonies of
these alleged expert witnesses for the following reasons.
First, the statements are not sufficiently specific to point to us a flaw (or flaws) in
the study or design/implementation (or some other aspect) of the project which
provides a causal link or, at least, a reasonable connection between the
construction and operation of the project vis-à-vis potential grave environmental
damage. In particular, they do not explain why the Environmental Management
Plan (EMP) contained in the EIS of the project will not adequately address these
concerns.
Second, some of the concerns raised in the alleged statements, like acid rain,
warming and acidification of the seawater, and discharge of pollutants were, as
previously discussed, addressed by the evidence presented by RP Energy
before the appellate court. Again, these alleged statements do not explain why
such concerns are not adequately covered by the EMP of RP Energy.
Third, the key observations of Dr. Cruz, while concededly assailing certain
aspects of the EIS, do not clearly and specifically establish how these omissions
have led to the issuance of an ECC that will pose significant negative
environmental impacts once the project is constructed and becomes operational.
The recommendations stated therein would seem to suggest points for
improvement in the operation and monitoring of the project, but they do not
clearly show why such recommendations are indispensable for the project to
comply with existing environmental laws and standards, or how non-compliance
with such recommendations will lead to an environmental damage of the
magnitude contemplated under the writ of kalikasan. Again, these statements do
not state with sufficient particularity how the EMP in the EIS failed to adequately
address these concerns.
Fourth, because the reason for the non-presentation of the alleged expert
witnesses does not appear on record, we cannot assume that their testimonies
are being unduly suppressed.
By ruling that we do not find a sufficiently compelling reason to compel the taking
of the testimonies of these alleged expert witnesses in relation to their serious
objections to the power plant project, we do not foreclose the possibility that their
testimonies could later on be presented, in a proper case, to more directly,
specifically and sufficiently assail the environmental soundness of the project and
establish the requisite magnitude of actual or threatened environmental damage,
if indeed present. After all, their sense of civic duty may well prevail upon them to
voluntarily testify, if there are truly sufficient reasons to stop the project, above
and beyond their inadequate claims in the Final Report that the project should
not be pursued. As things now stand, however, we have insufficient bases to
compel their testimonies for the reasons already proffered.
The alleged admissions of grave
environmental damage in the EIS of the
project.
In their Omnibus Motions for Clarification and Reconsideration before the
appellate court and Petition for Review before this Court, the Casiño Group
belatedly claims that the statements in the EIS prepared by RP Energy
established the significant negative environmental impacts of the project. They
argue in this manner:
Acid Rain
35. According to RP Energy's Environmental Impact Statement for its
proposed 2 x 150 MW Coal-Fired Thermal Power Plant Project, acid rain
may occur in the combustion of coal, to wit —
xxx xxx xxx
During the operation phase, combustion of coal will result in
emissions of particulates SOx and NOx. This may contribute to
the occurrence of acid rain due to elevated SO2 levels in the
atmosphere. High levels of NO2 emissions may give rise to health
problems for residents within the impact area.
xxx xxx xxx
Asthma Attacks
36. The same EPRMP 143 mentioned the incidence of asthma attacks
[as a] result of power plant operations, to wit —
DcTaEH

xxx xxx xxx

The incidence of asthma attacks among residents in the vicinity of
the project site may increase due to exposure to suspended
particulates from plant operations. 144
RP Energy, however, counters that the above portions of the EIS were quoted
out of context. As to the subject of acid rain, the EIS states in full:
Operation
During the operation phase, combustion of coal will result in emissions of
particulates, SOx and NOx. This may contribute to the occurrence of
acid rain due to elevated SO2 levels in the atmosphere. High levels
 of NO2 emissions may give rise to health problems for residents within
the impact area. Emissions may also have an effect on vegetation
(Section 4.1.4.2). However, the use of CFBC technology is a built-in
measure that results in reduced emission concentrations. SOx
emissions will be minimized by the inclusion of a desulfurisation
process, whilst NOx emissions will be reduced as the coal is
burned at a temperature lower than that required to oxidise
nitrogen. 145 (Emphasis supplied)
As to the subject of asthma attacks, the EIS states in full:
The incidence of asthma attacks among residents in the vicinity of the
project site may increase due to exposure to suspended particulates
from plant operations. Coal and ash particulates may also become
suspended and dispersed into the air during unloading and transport,
depending on wind speed and direction. However, effect on air quality
due to windblown coal particulates will be insignificant as the coal
handling system will have enclosures (i.e., enclosed conveyors and
coal dome) to eliminate the exposure of coal to open air, and
therefore greatly reduce the potential for particulates from being
carried away by wind (coal handling systems, Section 3.4.3.3). In
addition, the proposed process will include an electrostatic
precipitator that will remove fly ash from the flue gas prior to its
release through the stacks, and so particulates emissions will be
minimal. 146 (Emphasis supplied)
We agree with RP Energy that, while the EIS discusses the subjects of acid rain
and asthma attacks, it goes on to state that there are mitigating measures that
will be put in place to prevent these ill effects. Quite clearly, the Casiño Group,
quoted piecemeal the EIS in such a way as to mislead this Court as to its true
and full contents.
We deplore the way the Casiño Group has argued this point and we take this
time to remind it that litigants should not trifle with court processes. Along the
same lines, we note how the Casiño Group has made serious allegations in its
Petition for Writ of Kalikasan but failed to substantiate the same in the course of
the proceedings before the appellate court. In particular, during the preliminary
conference of this case, the Casiño Group expressly abandoned its factual
claims on the alleged grave environmental damage that will be caused by the
power plant (i.e., air, water and land pollution) and, instead, limited itself to legal
issues regarding the alleged non-compliance of RP Energy with certain laws and
rules in the procurement of the ECC. 147 We also note how the Casiño Group
failed to comment on the subject Petitions before this Court, which led this Court
to eventually dispense with its comment. 148 We must express our disapproval
over the way it has prosecuted its claims, bordering as it does on trifling with
court processes. We deem it proper, therefore, to admonish it to be more
circumspect in how it prosecutes its claims.
In sum, we agree with the appellate court that the Casiño Group failed to
substantiate its claims that the construction and operation of the power plant will
cause environmental damage of the magnitude contemplated under the writ
of kalikasan. The evidence it presented is inadequate to establish the factual
bases of its claims.
II.
Whether the ECC is invalid for lack of signature of Mr. Luis Miguel Aboitiz (Mr.
Aboitiz), as representative of RP Energy, in the Statement of Accountability of
the ECC.
The appellate court ruled that the ECC is invalid because Mr. Aboitiz failed to
sign the Statement of Accountability portion of the ECC.
We shall discuss the correctness of this ruling on both procedural and
substantive grounds.
Procedurally, we cannot fault the DENR for protesting the manner by which the
appellate court resolved the issue of the aforesaid lack of signature. We agree
with the DENR that this issue was not among those raised by the Casiño Group
in its Petition for Writ ofKalikasan. 149 What is more, this was not one of the
triable issues specifically set during the preliminary conference of this case. 150
How then did the issue of lack of signature arise? ICDcEA

A review of the voluminous records indicates that the matter of the lack of
signature was discussed, developed or surfaced only in the course of the
hearings, specifically, on clarificatory questions from the appellate court, to wit:
J. LEAGOGO:
I would also show to you your ECC, that's page 622 of the rollo. I am
showing to you this Environmental Compliance Certificate dated
December 22, 2008 issued by Sec. Jose L. Atienza, Jr. of the
DENR. This is your Exhibit "18." Would you like to go over this?
Are you familiar with this document?
MS. MERCADO:
Yes, it[']s my Annex "3," Your Honor.
J. LEAGOGO:
I would like to refer you to page 3 of the ECC dated December 22,
2008. Page 2 refers to the Environmental Compliance Certificate,
ECC Ref. No. 0804-011-4021. That's page 2 of the letter dated
December 22, 2008. And on page 3, Dr. Julian Amador
recommended approval and it was approved by Sec. Atienza.
You see that on page 3?
MS. MERCADO:
Yes, Your Honor.
J. LEAGOGO:
Okay. On the same page, page 3, there's a Statement of Accountability.
MS. MERCADO:
Yes, Your Honor.
J. LEAGOGO:
Luis, who is Luis Miguel Aboitiz?
MS. MERCADO:
During that time he was the authorized representative of RP Energy,
Your Honor.
J. LEAGOGO:
Now, who is the authorized representative of RP Energy?
MS. MERCADO:
It would be Mr. Aaron Domingo, I believe.
J. LEAGOGO:
Please tell the Court why this was not signed by Mr. Luis Miguel Aboitiz,
the Statement of Accountability?
Because the Statement of Accountability says, "Mr. Luis Miguel Aboitiz,
Director, representing Redondo Peninsula Energy with office
address located at 110 Legaspi Street, Legaspi Village, Makati
City, takes full responsibility in complying with all conditions in this
Environmental Compliance Certificate [ECC][.]" Will you tell this
Court why this was not signed?
MS. MERCADO:
It was signed, Your Honor, but this copy wasn't signed. My apologies, I
was the one who provided this, I believe, to the lawyers. This
copy was not signed because during. . . .
J. LEAGOGO:
But this is your exhibit, this is your Exhibit "18" and this is not signed. Do
you agree with me that your Exhibit "18" is not signed by Mr.
Aboitiz?
MS. MERCADO:
That's correct, Your Honor. 151
We find this line of questioning inadequate to apprise the parties that the lack of
signature would be a key issue in this case; as in fact it became decisive in the
eventual invalidation of the ECC by the appellate court.
Concededly, a court has the power to suspend its rules of procedure in order to
attain substantial justice so that it has the discretion, in exceptional cases, to take
into consideration matters not originally within the scope of the issues raised in
the pleadings or set during the preliminary conference, in order to
prevent a miscarriage of justice. In the case at bar, the importance of the
signature cannot be seriously doubted because it goes into the consent and
commitment of the project proponent to comply with the conditions of the ECC,
which is vital to the protection of the right to a balanced and healthful ecology of
those who may be affected by the project. SEDICa

Nonetheless, the power of a court to suspend its rules of procedure in

exceptional cases does not license it to foist a surprise on the parties in a given
case. To illustrate, in oral arguments before this Court, involving sufficiently
important public interest cases, we note that individual members of the Court,
from time to time, point out matters that may not have been specifically covered
by the advisory (the advisory delineates the issues to be argued and decided).
However, a directive is given to the concerned parties to discuss the aforesaid
matters in their memoranda. Such a procedure ensures that, at the very least,
the parties are apprised that the Court has taken an interest in such matters and
may adjudicate the case on the basis thereof. Thus, the parties are given an
opportunity to adequately argue the issue or meet the issue head-on. We,
therefore, find that the appellate court should have, at the very least, directed RP
Energy and the DENR to discuss and elaborate on the issue of lack of signature
in the presentation of their evidence and memoranda, before making a definitive
ruling that the lack thereof invalidated the ECC. This is in keeping with the basic
tenets of due process.
At any rate, we shall disregard the procedural defect and rule directly on whether
the lack of signature invalidated the ECC in the interest of substantial justice.
The laws governing the ECC, i.e., Presidential Decree No. (PD) 1151 and PD
1586, do not specifically state that the lack of signature in the Statement of
Accountability has the effect of invalidating the ECC. Unlike in wills or donations,
where failure to comply with the specific form prescribed by law leads to its
nullity, 152 the applicable laws here are silent with respect to the necessity
of a signature in the Statement of Accountability and the effect of the lack
thereof. This is, of course, understandable because the Statement of
Accountability is a mere off-shoot of the rule-making powers of the DENR relative
to the implementation of PD 1151 and PD 1586. To determine, therefore, the
effect of the lack of signature, we must look at the significance thereof under the
Environmental Impact Assessment (EIA) Rules of the DENR and the surrounding
circumstances of this case.
To place this issue in its proper context, a helpful overview of the stages of the
EIA process, taken from the Revised Manual, is reproduced below:
Figure 1-3 Overview of Stages of the Philippine EIA Process 153

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The signing of the Statement of Accountability takes place at the Decision-
Making Stage. After a favorable review of its ECC application, the project
proponent, through its authorized representative, is made to sign a sworn
statement of full responsibility on the implementation of its commitments prior to
the official release of the ECC.
HcSCED

The definition of the ECC in the Revised Manual highlights the importance of the
signing of the Statement of Accountability:
Environmental Compliance Certificate (ECC) — a certificate of
Environmental Compliance Commitment to which the Proponent
conforms with, after DENR-EMB explains the ECC conditions, by
signing the sworn undertaking of full responsibility over
implementation of specified measures which are necessary to
comply with existing environmental regulations or to operate within
 best environmental practices that are not currently covered by
existing laws. It is a document issued by the DENR/EMB
after a positive review of an ECC application, certifying that the
Proponent has complied with all the requirements of the EIS System and
has committed to implement its approved Environmental Management
Plan. The ECC also provides guidance to other agencies and to LGUs
on EIA findings and recommendations, which need to be considered in
their respective decision-making process. 157 (Emphasis supplied)
As can be seen, the signing of the Statement of Accountability is an integral and
significant component of the EIA process and the ECC itself. The evident
intention is to bind the project proponent to the ECC conditions, which will ensure
that the project will not cause significant negative environmental impacts by the
"implementation of specified measures which are necessary to comply with
existing environmental regulations or to operate within best environmental
practices that are not currently covered by existing laws." Indeed, the EIA
process would be a meaningless exercise if the project proponent shall not be
strictly bound to faithfully comply with the conditions necessary to adequately
protect the right of the people to a healthful and balanced ecology.
Contrary to RP Energy's position, we, thus, find that the signature of the project
proponent's representative in the Statement of Accountability is necessary for the
validity of the ECC. It is not, as RP Energy would have it, a mere formality and its
absence a mere formal defect.
The question then is, was the absence of the signature of Mr. Aboitiz, as
representative of RP Energy, in the Statement of Accountability sufficient ground
to invalidate the ECC?
Viewed within the particular circumstances of this case, we answer in the
negative.
While it is clear that the signing of the Statement of Accountability is necessary
for the validity of the ECC, we cannot close our eyes to the particular
circumstances of this case. So often have we ruled that this Court is not
merely a court of law but a court of justice. We find that there are several
circumstances present in this case which militate against the invalidation of the
ECC on this ground.
We explain.
First, the reason for the lack of signature was not adequately taken into
consideration by the appellate court. To reiterate, the matter surfaced during the
hearing of this case on clarificatory questions by the appellate court, viz.:
J. LEAGOGO:
 Please tell the Court why this was not signed by Mr. Luis Miguel Aboitiz,
the Statement of Accountability?
Because the Statement of Accountability says, "Mr. Luis Miguel Aboitiz,
Director, representing Redondo Peninsula Energy with office
address located at 110 Legaspi Street, Legaspi Village, Makati
City, takes full responsibility in complying with all conditions in this
Environmental Compliance Certificate [ECC][.]" Will you tell this
Court why this was not signed?
MS. MERCADO:
It was signed, Your Honor, but this copy wasn't signed. My
apologies, I was the one who provided this, I believe, to the
lawyers. This copy was not signed because during. . .
J. LEAGOGO:
But this is your exhibit, this is your Exhibit "18" and this is not signed. Do
you agree with me that your Exhibit "18" is not signed by Mr.
Aboitiz?
MS. MERCADO:
That's correct, Your Honor. 158 (Emphasis supplied)
Due to the inadequacy of the transcript and the apparent lack of opportunity for
the witness to explain the lack of signature, we find that the witness' testimony
does not, by itself, indicate that there was a deliberate or malicious intent not to
sign the Statement of Accountability.
Second, as previously discussed, the concerned parties to this case, specifically,
the DENR and RP Energy, were not properly apprised that the issue relative to
the lack of signature would be decisive in the determination of the validity of the
ECC. Consequently, the DENR and RP Energy cannot be faulted for not
presenting proof during the course of the hearings to squarely tackle the issue of
lack of signature.TacADE

Third, after the appellate court ruled in its January 30, 2013 Decision that the lack
of signature invalidated the ECC, RP Energy attached, to its Motion for Partial
Reconsideration, a certified true copy of the ECC, issued by the DENR-EMB,
which bore the signature of Mr. Aboitiz. The certified true copy of the ECC
showed that the Statement of Accountability was signed by Mr. Aboitiz on
December 24, 2008. 159
The authenticity and veracity of this certified true copy of the ECC was not
controverted by the Casiño Group in its comment on RP Energy's motion for
partial reconsideration before the appellate court nor in their petition before this
Court. Thus, in accordance with the presumption of regularity in the performance
of official duties, it remains uncontroverted that the ECC on file with the DENR
contains the requisite signature of Mr. Aboitiz in the Statement of Accountability
portion.
As previously noted, the DENR and RP Energy were not properly apprised that
the issue relative to the lack of signature would be decisive in the determination
of the validity of the ECC. As a result, we cannot fault RP Energy for submitting
the certified true copy of the ECC only after it learned that the appellate court had
invalidated the ECC on the ground of lack of signature in its January 30, 2013
Decision.
We note, however, that, as previously discussed, the certified true copy of the
Statement of Accountability was signed by Mr. Aboitiz on December 24, 2008 or
two days after the ECC's official release on December 22, 2008. The afore-
discussed rules under the Revised Manual, however, state that the proponent
shall sign the sworn statement of full responsibility on implementation of its
commitmentsprior to the release of the ECC. It would seem that the ECC was
first issued, then it was signed by Mr. Aboitiz, and thereafter, returned to the
DENR to serve as its file copy. Admittedly, there is lack of strict compliance with
the rules although the signature is present. Be that as it may, we find nothing in
the records to indicate that this was done with bad faith or inexcusable
negligence because of the inadequacy of the evidence and arguments
presented, relative to the issue of lack of signature, in view of the manner this
issue arose in this case, as previously discussed. Absent such proof, we are not
prepared to rule that the procedure adopted by the DENR was done with bad
faith or inexcusable negligence but we remind the DENR to be more circumspect
in following the rules it provided in the Revised Manual. Thus, we rule that the
signature requirement was substantially complied with pro hac vice.
Fourth, we partly agree with the DENR that the subsequent letter-requests for
amendments to the ECC, signed by Mr. Aboitiz on behalf of RP Energy, indicate
its implied conformity to the ECC conditions. In practical terms, if future litigation
should occur due to violations of the ECC conditions, RP Energy would be
estopped from denying its consent and commitment to the ECC conditions even
if there was no signature in the Statement of Accountability. However, we note
that the Statement of Accountability precisely serves to obviate any doubt as to
the consent and commitment of the project proponent to the ECC conditions. At
any rate, the aforesaid letter-requests do additionally indicate RP Energy's
conformity to the ECC conditions and, thus, negate a pattern to maliciously
evade accountability for the ECC conditions or to intentionally create a "loophole"
in the ECC to be exploited in a possible future litigation over non-compliance with
the ECC conditions. IDaCcS

In sum, we rule that the appellate court erred when it invalidated the ECC on the
ground of lack of signature of Mr. Aboitiz in the ECC's Statement of
Accountability relative to the copy of the ECC submitted by RP. Energy to the
appellate court. While the signature is necessary for the validity of the ECC, the
particular circumstances of this case show that the DENR and RP Energy were
not properly apprised of the issue of lack of signature in order for them to present
controverting evidence and arguments on this point, as the matter only
developed during the course of the proceedings upon clarificatory questions from
the appellate court. Consequently, RP Energy cannot be faulted for submitting
the certified true copy of the ECC only after it learned that the ECC had been
invalidated on the ground of lack of signature in the January 30, 2013 Decision of
the appellate court.
The certified true copy of the ECC, bearing the signature of Mr. Aboitiz in the
Statement of Accountability portion, was issued by the DENR-EMB and remains
uncontroverted. It showed that the Statement of Accountability was signed by Mr.
Aboitiz on December 24, 2008. Although the signing was done two days after the
official release of the ECC on December 22, 2008, absent sufficient proof, we are
not prepared to rule that the procedure adopted by the DENR was done with bad
faith or inexcusable negligence. Thus, we rule that the signature requirement was
substantially complied with pro hac vice.
III.
Whether the first and second amendments to the ECC are invalid for failure to
undergo a new environmental impact assessment (EIA) because of the
utilization of inappropriate EIA documents.
Upholding the arguments of the Casiño Group, the appellate court ruled that the
first and second amendments to the ECC were invalid because the ECC
contained an express restriction that any expansion of the project beyond the
project description shall be the subject of a new EIA. It found that both
amendments failed to comply with the appropriate EIA documentary
requirements under DAO 2003-30 and the Revised Manual. In particular, it found
that the Environmental Performance Report and Management Plan (EPRMP)
and Project Description Report (PDR), which RP Energy submitted to the DENR,
relative to the application for the first and second amendments, respectively,
were not the proper EIA document type. Hence, the appellate court ruled that the
aforesaid amendments were invalid.
Preliminarily, we must state that executive actions carry presumptive validity so
that the burden of proof is on the Casiño Group to show that the procedure
adopted by the DENR in granting the amendments to the ECC were done with
grave abuse of discretion. More so here because the administration of the EIA
process involves special technical skill or knowledge which the law has
specifically vested in the DENR. AHCTEa

After our own examination of DAO 2003-30 and the Revised Manual as well as
the voluminous EIA documents of RP Energy appearing in the records of this
case, we find that the appellate court made an erroneous interpretation and
application of the pertinent rules.
We explain.
As a backgrounder, PD 1151 set the Philippine Environment Policy. Notably, this
law recognized the right of the people to a healthful environment. 160 Pursuant
thereto, in every action, project or undertaking, which significantly affects the
quality of the environment, all agencies and instrumentalities of the national
government, including government-owned or -controlled corporations, as well as
private corporations, firms, and entities were required to prepare, file and
include a statement (i.e., Environmental Impact Statement or EIS) containing:
(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. 161
To further strengthen and develop the EIS, PD 1586 was promulgated, which
established the Philippine Environmental Impact Statement System (PEISS). The
PEISS is "a systems-oriented and integrated approach to the EIS system to
ensure a rational balance between socio-economic development and
environmental protection for the benefit of present and future
generations." 162 The ECC requirement is mandated under Section 4 thereof:
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. . . .
(Emphasis supplied) EaDATc

The PEISS consists of the Environmental Impact Assessment (EIA) process,

which is mandatory for private or public projects that may significantly affect the
quality of the environment. It involves evaluating and predicting the likely impacts
of the project on the environment, designing appropriate preventive, mitigating
and enhancement measures addressing these consequences to protect the
environment and the community's welfare. 163
PD 1586 was implemented by DAO 2003-30 which, in turn, set up a system or
procedure to determine when a project is required to secure an ECC and when it
is not. When an ECC is not required, the project proponent procures a Certificate
of Non-Coverage (CNC).164 As part of the EIA process, the project proponent is
required to submit certain studies or reports (i.e., EIA document type) to the
DENR-EMB, which will be used in the review process in assessing the
environmental impact of the project and the adequacy of the corresponding
environmental management plan or program to address such environmental
impact. This will then be part of the bases to grant or deny the application for an
ECC or CNC, as the case may be.
Table 1-4 of the Revised Manual summarizes the required EIA document type for
each project category. It classifies a project as belonging to group I, II, III, IV or V,
where:
I — Environmentally Critical Projects (ECPs) in either Environmentally Critical
Area (ECA) or Non-Environmentally Critical Area (NECA),
II — Non-Environmentally Critical Projects (NECPs) in ECA,
III — NECPs in NECA,
IV — Co-located Projects, and
V — Unclassified Projects.
The aforesaid table then further classifies a project, as pertinent to this case,
as belonging to category A, B or C, where:
A- new;
B — existing projects for modification or re-start up; and
C — operating projects without an ECC.
Finally, the aforesaid table considers whether the project is single or co-
located. 165 After which, it states the appropriate EIA document type needed
for the application for an ECC or CNC, as the case may be.
The appropriate EIA document type vis-à-vis a particular project depends on the
potential significant environmental impact of the project. At the highest level
would be an ECP, such as the subject project. The hierarchy of EIA document
type, based on comprehensiveness and detail of the study or report contained
therein, insofar as single projects are concerned, is as follows:
1. Environmental Impact Statement 166 (EIS),
2. Initial Environmental Examination 167 (IEE) Report,
3. Initial Environmental Examination 168 (IEE) Checklist Report,
4. Environmental Performance Report and Management Plan 169 (EPRMP), and
5. Project Description 170 (PD) or Project Description Report (PDR).
Thus, in the course of RP Energy's application for an ECC, it was required by
the DENR-EMB to submit an EIS because the subject project is: an ECP, new
and a single project.
The present controversy, however, revolves around, not an application for an
ECC, but amendments thereto.
RP Energy requested the subject first amendment to its ECC due to its desire to
modify the project design through the inclusion of abarge wharf, seawater intake
breakwater, subsea discharge pipeline, raw water collection system, drainage
channel improvement anda 230-kV double transmission line. The DENR-EMB
determined that this was a major amendment and, thus, required RP Energy to
submit an EPRMP.
The Casiño Group argued, and the appellate court sustained, that an EPRMP is
not the correct EIA document type based on the definition of an EPRMP in DAO
2003-30 and the Revised Manual.
In DAO 2003-30, an EPRMP is defined as:
Environmental Performance Report and Management Plan (EPRMP) —
documentation of the actual cumulative environmental impacts and
effectiveness of current measures for single projects that are already
operating but without ECC's, i.e., Category A-3. For Category B-3
projects, a checklist form of the EPRMP would suffice; 171 (Emphasis
supplied)
Further, the table in Section 5 of DAO 2003-30 states that an EPRMP is required
for "A-2: Existing and to be expanded (including undertakings that have stopped
operations for more than 5 years and plan to re-start with or without expansion)
and A-3: Operating without ECC." TaCDAH

On the other hand, the Revised Manual delineates when an EPRMP is the
proper EIA document type, thus:
For operating projects with previous ECCs but planning or applying
for clearance to modify/expand or re-start operations, or for projects
operating without an ECC but applying to secure one to comply with
PD 1586 regulations, the appropriate document is not an EIS but an EIA
Report incorporating the project's environmental performance and its
current Environmental Management Plan. This report is . . . an . . .
 Environmental Performance Report and Management Plan (EPRMP)
for single project applications . . . 172 (Emphasis supplied)
In its "Glossary," the Revised Manual defines an EPRMP as:
Environmental Performance Report and Management Plan (EPRMP) —
documentation of the actual cumulative environmental impacts and
effectiveness of current measures for single projects that are already
operating but without ECCs. 173 (Emphasis supplied)
Finally, Table 1-4, in the Revised Manual, states that an EPRMP is required for
"Item I-B: Existing Projects for Modification or Re-start up (subject to conditions in
Annex 2-1c) and I-C: Operating without ECC."
From these definitions and tables, an EPRMP is, thus, the required EIA
document type for an ECP-single project which is:
1. Existing and to be expanded (including undertakings that have
stopped operations for more than 5 years and plan to re-start with or
without expansion);
2. Operating but without ECCs;
3. Operating projects with previous ECCs but planning or applying for
clearance to modify/expand or re-start operations; and
4. Existing projects for modification or re-start up.
It may be observed that, based from the above, DAO 2003-30 and the
Revised Manual appear to use the terms "operating" and "existing"
interchangeably. In the case at bar, the subject project has not yet been
constructed although there have been horizontal clearing operations at the
project site.
On its face, therefore, the theory of the Casiño Group, as sustained by the
appellate court — that the EPRMP is not the appropriate EIA document type —
seems plausible because the subject project is not: (1) operating/existing
with a previous ECC but planning or applying for modification or expansion, or (2)
operating but without an ECC. Instead, the subject project is an unimplemented
or a non-implemented, hence, non-operating project with a previous ECC but
planning for modification or expansion.
The error in the above theory lies in the failure to consider or trace
the applicable provisions of DAO 2003-30 and the Revised Manualon
amendments to an ECC.
The proper starting point in determining the validity of the subject first
amendment, specifically, the propriety of the EIA document type (i.e., EPRMP)
which RP Energy submitted in relation to its application for the aforesaid
 amendment, must of necessity be the rules on amendments to an ECC. 174 This
is principally found in Section 8.3, Article II of DAO 2003-03, 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. (Emphasis supplied)
Implementing the afore-quoted section, the Revised Manual pertinently states
in Section 2.2, paragraph 16:
16) Application Process for ECC Amendments
Figure 2-4 presents how Proponents may request for minor or major
changes in their ECCs. Annex 2-1c provides a decision chart for the
determination of requirements for project modifications, particularly for
delineating which application scenarios will require EPRMP (which will
be subject to Figure 2-1 process) or other support documentations
(which will be subject to Figure 2-4 process).
ASHECD

Figure 2-4, in turn, provides:

Figure 2-4. Flowchart on Request for ECC
Amendments 175

Scenario 1: Request for Minor Scenario 2: Request for Major

Amendments Amendments
1. Typographical error 1. Expansion of project area w/in
2. Extension of deadlines for catchment described in EIA
submission of post-ECC 2. Increase in production capacity or
requirement/s auxiliary component of the original
3. Extension of ECC validity project
4. Change in company 3. Change/s in process flow or technology
name/ownership 4. Addition of new product
5. Decrease in land/project 5. Integration of ECCs for similar or
area or production dissimilar but contiguous projects
capacity (NOTE: ITEM#5 IS PROPONENT'S
6. Other amendments OPTION, NOT EMB'S)
deemed "minor" at the 6. Revision/Reformatting of ECC
discretion of the EMB Conditions
CO/RO Director 7. Other amendments deemed "major" at
the discretion of the EMB CO/RO
Director

1 [Start] 1 [Start]

Within three (3) years from ECC Within three (3) years from ECC issuance (for projects not
issuance (for projects not started) 177 OR at any time during project implementation,
started)176 OR at any time during the Proponent prepares and submits to the ECC-endorsing
project implementation, the Proponent DENR-EMB office a LETTER-REQUEST for ECC
prepares and submits to the ECC- amendments, including data/information, reports or
endorsing DENR-EMB documents to substantiate the requested revisions.
office aLETTER-REQUEST for ECC 2
amendment, including For projects that have started implementation, EMB
data/information, reports or documents evaluates request based on Annex 2-1cfor various
to substantiate the requested revisions. scenarios of project modification. Documentary
requirementsmay range from a Letter-Request to an
EPRMP to the EMB CO/RO while for those with
Programmatic CEE, a PEPRMP may need to be
submitted to the EMB CO to support the request. It is
important to note that for operating projects, the
appropriate document is not an EIS but an EIA Report
incorporating the project's historical environmental
performance and its current EMP, subject to specific
documentary requirements detailed in Annex 2-1c for
↓ every modification scenario.
3 ↓

The ECC-endorsing EMB office For EPRMP/PEPRMP-based requests, EMB

assigns a Case Handler to evaluate forms a Technical/Review Committee to evaluate the
the request request. For other requests, a Case Handler may solely
undertake the evaluation. EMB CO and RO will
process P/EPRMP for PECC/ECC under Groups I and II
respectively. (Go to Figure 2-1)
3 ↓ 4 ↓
ECC-endorsing/issuing Authority (per Table 1-4) decides on
ECC-endorsing Authority decides on
Letter Requests/EPRMP/PEPRMP/Other documents based
the Letter-Request, based on CH
on EMB CH and/or Tech/Review Committee
recommendation
recommendations.

Maximum Processing Time to

Max Processing Time to Issuance of Decision
Issuance of Decision
EMB CO 7 workdays CO CO RO RO
EMB RO 7 workdays PEPRMP EPRMP PEPRMP EPRMP

120 90 60 30
workdays workdays workdays workdays
Other document applications: max 30 workdays (EMB CO
and RO)

Noteworthy in the above, which is pertinent to the issue at hand, is that the amendment
process squarely applies to projects not started, such as the subject project, based on
the phrase "[w]ithin three (3) years from ECC issuance (for projects not started) . . .".
Annex 2-1c, in turn, provides a "Decision Chart for Determination of
Requirements for Project Modification." We reproduce below the first three
columns of Annex 2-1c, as are pertinent to the issue at hand:

ANNEX 2-1c
DECISION CHART FOR DETERMINATION OF REQUIREMENTS
FOR PROJECT MODIFICATION 178

Proposed Modifications to the
Current Project
Resulting Decision
Document/Type of EIA
Report Required
Operational projects, or
Analysis of Proposed those which have stopped
Modifications for < 5 years and plan to re-
start
For Groups I and II EIS-
based Projects with an ECC
applying for modification
1. Expansion of land/project Since the modification will be ECC Amendment
area w/in catchment or in an area already described /Letter Request with brief
environment described in and evaluated in the original description of activities in the
the original EIA Report EIA Report, incremental additional area
impacts from additional land
development will have been
addressed in the approved
EMP

2. Expansion of land/project It is assumed the ECC Amendment

area OUTSIDE catchment modification proposal may /Environmental Performance
or environment described in have significant potential Report and Management Plan
the original EIA Report impacts due to absence of (EPRMP)
prior assessment as to how
the project may affect the
proposed expansion area

3. Increase in capacity or Non-exceedance of PDR ECC Amendment

auxiliary component of the (non covered project) /Letter Request with brief
original project which threshold is assumed that description of additional
will either not entail impacts are not significant; capacity or component
exceedance of PDR (non-
Modification scenario and
covered project)
decision process are
thresholds orEMP & ERA
applicable to both non-
can still address impacts &
implemented and operating
risks arising from
projects issued ECCs
modification

4. Increase in capacity or Exceedance of PDR (non- ECC Amendment

auxiliary component of the covered) threshold is /Environmental Performance
original project which will assumed that impacts may Report and Management Plan
either exceed PDR (non- be potentially significant, (EPRMP)
covered project) thresholds, particularly if modification will
or EMP & ERA cannot result to a next higher level
address impacts and risks of threshold range
arising from modification
Modification scenario and
decision process are
applicable to both non-
implemented and operating
projects with or without
issued ECCs

5. Change/s in process flow or EMP and ERA can still ECC Amendment/Letter
technology address impacts & risks Request with brief process
arising from modification description

EMP and ERA cannot ECC Amendment

 address impacts & risks /Environmental Performance
arising from modification Report and Management Plan
(EPRMP)

6. Additional component or Activity is directly lessening ECC Amendment/Letter

products which will enhance or mitigating the project's Request with consolidated
the environment (e.g., due impacts on the environment. Project Description Report of
to compliance to new However, to ensure there new project component and
stringent requirements) or is nocomponent in the integrated EMP
lessen impacts on the modification which fall under
environment (e.g., thru covered project types, EMB
utilization of waste into new will require disclosure of the
products) description of the
components and process
with which the new product
will be developed.

7. Downgrade project size or No incremental adverse From ECC Amendment

area or other units of impacts; may result to lower to Relief of ECC
measure of thresholds limits project threshold or may Commitments
result to non-coverage (Conversion to CNC):
/Letter-Request only

8. Conversion to new project Considered new application New ECC

type (e.g.,bunker-fired plant but with lesser data /EIS
to gas-fired) requirements since most
facilities are established;
environmental performance
in the past will serve as
baseline; However, for
operating projects, there may
be need to request for Relief
from ECC Commitment prior
to applying for new project
type to ensure no balance of
environmental
accountabilities from the
current project

9. Integration of ECCs for No physical change in ECC Amendment

similar or contiguous project size/area;no change /Letter Request with
projects in process/technology but consolidated Project
improved management of Description Report and
(Note: Integration of ECCs
continuous projects by integrated EMP
is at the option of the
having an integrated
Proponent to request/apply)
planning document in the
form or an integrated ECC
 (ECC conditions will be
harmonized across projects;
conditions relating to
requirements within other
agencies' mandates will be
deleted)

10. Revision/Reformatting of No physical change on the ECC Amendment

ECC Conditions project but ECC conditions /Letter Request only
relating to requirements
within other agencies'
mandates will be deleted

We now apply these provisions to the case at bar.

To reiterate, the first amendment to the ECC was requested by RP Energy due to
its planned change of project design involving the inclusion of a barge wharf,
seawater intake breakwater, subsea discharge pipeline, raw water collection
system, drainage channel improvement and a 230-kV double transmission line.
The DENR-EMB determined 179 that the proposed modifications involved a major
amendment because it will result in an increase in capacity or auxiliary
component, as per Scenario 2, Item #2 of Figure 2-4:
Scenario 2: Request for Major
Amendments
1. Expansion of project area w/in catchment described in EIA
2. Increase in production capacity or auxiliary component of the original
project 180
3. Change/s in process flow or technology
4. Addition of new product
5. Integration of ECCs for similar or dissimilar but contiguous projects
(NOTE: ITEM#5 IS PROPONENT'S OPTION, NOT EMB'S)
6. Revision/Reformatting of ECC Conditions
7. Other amendments deemed "major at the discretion of the EMB
CO/RO Director
The Casiño Group does not controvert this finding by the DENR-EMB and we
find the same reasonably supported by the evidence on record considering that,
among others, the construction of a 230-kV double transmission line would result
in major activities outside the project site which could have significant
environmental impacts.
 Consequently, the amendment was considered as falling under Item#4 of
Annex 2-1c, and, thus, the appropriate EIA document type is an EPRMP, viz.:
4. Increase in capacity Exceedance of PDR ECC Amendment
or auxiliary (non-covered) thresholds /Environmental
component of the is assumed that impacts Performance
original project which may be potentially Report and
will either exceed significant, particularly if Management
PDR (non-covered modification will result to Plan (EPRMP) 182
project) thresholds, or a next higher level of
EMP & ERA cannot threshold range
address impacts and
risks arising from Modification scenario
modification and decision process are
applicable to both non-
implemented and
operating projects with or
without issued ECCs 181

Note that the Chart expressly states that, "[m]odification scenario and decision
process are applicable to both non-implemented and operating projects with or
without ECCs." 183 To recall, the subject project has not been constructed and is
not yet operational, although horizontal clearing activities have already been
undertaken at the project site. Thus, the subject project may be reasonably
classified as a non-implemented project with an issued ECC, which falls under
Item#4 and, hence, an EPRMP is the appropriate EIA document type.
This lengthy explanation brings us to a simple conclusion. The definitions in DAO
2003-30 and the Revised Manual, stating that the EPRMP is applicable to (1)
operating/existing projects with a previous ECC but planning or applying for
modification or expansion, or (2) operating projects but without an ECC,
were not an exclusive list. HCETDS

The afore-discussed provisions of Figure 2-4, in relation to Annex 2-1c, plainly

show that the EPRMP can, likewise, be used as an appropriate EIA document
type for a single, non-implemented project applying for a major amendment to its
ECC, involving an increase in capacity or auxiliary component, which will exceed
PDR (non-covered project) thresholds, or result in the inability of the EMP and
ERA to address the impacts and risks arising from the modification, such as the
subject project.
That the proposed modifications in the subject project fall under this class or type
of amendment was a determination made by the DENR-EMB and,
absent a showing of grave abuse of discretion, the DENR-EMB's findings are
entitled to great respect because it is the administrative agency with the special
competence or expertise to administer or implement the EIS System.
The apparent confusion of the Casiño Group and the appellate court is
understandable. They had approached the issue with a legal training mindset or
background. As a general proposition, the definition of terms in a statute or rule is
controlling as to its nature and scope within the context of legal or judicial
proceedings. Thus, since the procedure adopted by the DENR-EMB seemed to
contradict or go beyond the definition of terms in the relevant issuances,
the Casiño Group and the appellate court concluded that the procedure was
infirm.
However, a holistic reading of DAO 2003-30 and the Revised Manual will show
that such a legalistic approach in its interpretation and application is
unwarranted. This is primarily because the EIA process is a system, not a set of
rigid rules and definitions. In the EIA process, there is much room for flexibility in
the determination and use of the appropriate EIA document type as the foregoing
discussion has shown. 184 To our mind, what should be controlling is the guiding
principle set in DAO 2003-30 in the evaluation of applications for amendments to
ECCs, as stated in Section 8.3 thereof: "[r]equirements 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." 185
This brings us to the next logical question, did the EPRMP provide the necessary
information in order for the DENR-EMB to assess the environmental impact of
RP Energy's request relative to the first amendment?
We answer in the affirmative. aETDIc

In the first place, the Casiño Group never attempted to prove that the subject
EPRMP, submitted by RP Energy to the DENR-EMB, was insufficient for
purposes of evaluating the environmental impact of the proposed modifications to
the original project design. These isno claim that the data submitted were
falsified or misrepresented. Neither was there an attempt to subpoena the review
process documents of the DENR to establish that the grant of the amendment to
the ECC was done with grave abuse of discretion or to the grave prejudice of the
right to a healthful environment of those who will be affected by the project.
Instead, the Casiño Group relied solely on the definition of terms in DAO 2003-30
and the Revised Manual, which approach, as previously discussed, was
erroneous.
At any rate, we have examined the contents of the voluminous EPRMP
submitted by RP Energy and we find therein substantial sections explaining the
proposed changes as well as the adjustments that will be made in the
environmental management plan in order to address the potential environmental
impacts of the proposed modifications to the original project design. "These are
summarized in the "Project Fact Sheet" 186 of the EPRMP and extensively
discussed in Section 4 187 thereof. Absent any claim or proof to the contrary, we
have no bases to conclude that these data were insufficient to assess the
environmental impact of the proposed modifications. In accordance with the
presumption of regularity in the performance of official duties, the DENR-EMB
must be deemed to have adequately assessed the environmental impact of the
proposed changes, before granting the request under the first amendment to the
subject ECC.
In sum, the Revised Manual permits the use of an EPRMP, as the appropriate
EIA document type, for major amendments to an ECC,even for an
unimplemented or non-implemented project with a previous ECC, such as
the subject project. Consequently, we find that the procedure adopted by the
DENR, in requiring RP Energy to submit an EPRMP in order to undertake the
environmental impact assessment of the planned modifications to the original
project design, relative to the first amendment to the ECC, suffers
from noinfirmity.
We apply the same framework of analysis in determining the propriety of a PDR,
as the appropriate EIA document type, relative to the second amendment to the
subject ECC.
Again, the Casiño Group, as sustained by the appellate court, relied on the
definitions of a PDR in DAO 2003-30 and the Revised Manual: DEcSaI

Project Description (PD) — document, which may also be a chapter in

an EIS, that describes the nature, configuration, use of raw materials
and natural resources, production system, waste or pollution generation
and control and the activities of a proposed project. It
includes a description of the use of human resources as well as activity
timelines, during the pre-construction, construction, operation and
abandonment phases. It is to be used for reviewing co-located and
single projects under Category C, as well as for Category D projects. 188
xxx xxx xxx
a) For new projects: . . . For non-covered projects in Groups II and III, a .
. . Project Description Report (PDR) is the appropriate document to
secure a decision from DENR/EMB. The PDR is a "must" requirement
for environmental enhancement and mitigation projects in both ECAs
(Group II) and NECAs (Group III) to allow EMB to confirm the benign
nature of proposed operations for eventual issuance of a Certificate of
Non-Coverage (CNC). All other Group III (non-covered) projects do not
need to submit PDRs — application is at the option of the Proponent
should it need a CNC for its own purposes, e.g., financing pre-requisite.
For Group Vprojects, a PDR is required to ensure new
 processes/technologies or any new unlisted project does not pose harm
to the environment. The Group V PDR is a basis for either issuance
of a CNC or classification of the project into its proper project group.
b) For operating projects with previous ECCs but planning or applying for
clearance to modify/expand or re-start operations, or for projects
operating without an ECC but applying to secure one to comply with PD
1586 regulations, the appropriate document is not an EIS but an EIA
Report incorporating the project's environmental performance and its
current Environmental Management Plan. This report is either
an (6) Environmental Performance Report and Management Plan
(EPRMP) for single project applications or a (7) Programmatic EPRMP
(PEPRMP) for co-located project applications. However, for small project
modifications, an updating of the project description or the
Environmental Management Plan with the use of the proponent's
historical performance and monitoring records may suffice. 189
xxx xxx xxx
Project Description (PD) — document, which may also be a chapter in
an EIS, that describes the nature, configuration, use of raw materials
and natural resources, production system, waste or pollution generation
and control and the activities of a proposed project. It
includes a description of the use of human resources as well as activity
timelines, during the pre-construction, construction, operation and
abandonment phases. 190
We will no longer delve into the details of these definitions. Suffice it to state,
similar to the discussion on the EPRMP, that if we go by the strict limits of these
definitions, the PDR relative to the subject second amendment would not fall
squarely under any of the above.
However, again, these are not the only provisions governing the PDR in the
Revised Manual.
After the favorable grant of the first amendment, RP Energy applied for another
amendment to its ECC, this time in consideration of its plan to change the
configuration of the project from 2 x 150 MW to 1 x 300 MW. In practical terms,
this meant that the subject project will still produce 300 MW of electricity but will
now make use of only one boiler (instead of two) to achieve greater efficiency in
the operations of the plant. The DENR-EMB determined 191 this amendment to
be minor, under Scenario 1, Item#6 of Figure 2-4:
Scenario 1: Request for Minor
Amendments
1. Typographical error
2. Extension of deadlines for submission of post-ECC requirement/s
 3. Extension of ECC validity
4. Change in company name/ownership
5. Decrease in land/project area or production capacity
6. Other amendments deemed "minor" at the discretion of the EMB
CO/RO Director 192
— because (1) there is no increase in capacity; (2) it does not constitute any
significant impact; and (3) its EMP and ERA as specified in the submitted
EPRMP remain the same. 193 Relative to Annex 2-1c, the requested
amendment was, in turn, determined to fall under Item#3:
3. Increase in capacity or Non-exceedance of ECC Amendment
auxiliary component PDR (non covered /Letter Request
of the original project project) thresholds is with brief
which will either not assumed that impacts description of
entail exceedance of are not significant; additional capacity
PDR (non-covered or component 195
project) thresholds or Modification scenario
EMP & ERA can still and decision process
address impacts & are applicable to both
risks arising from non-implemented and
modification operating projects
issued ECCs 194

We make the same observation, as before, that the above applies to an

unimplemented or non-implemented project with a previous ECC, like the subject
project. Although it may be noted that the proposed modification does not
squarely fall under Item#3, considering that, as previously mentioned, there will
be no increase in capacity relative to the second amendment, still, we find
nothing objectionable to this classification by the DENR-EMB, for it seems plain
enough that this classification was used because the modification was deemed
too minor to require a detailed project study like an EIS or EPRMP. Since this is
the classification most relevant and closely related to the intended amendment,
following the basic precept that the greater includes the lesser, the DENR-EMB
reasonably exercised its discretion in merely requiring a letter request with a brief
description of the modification.
As earlier noted, the PDR is the EIA document type with the least detail, and,
thus, applicable to such minor modifications. Thus, the DENR EMB cannot be
faulted for requiring RP Energy to submit a PDR relative to its application for the
second amendment. Consequently, as before, we find that the Revised Manual
supports the procedure adopted by the DENR-EMB in requiring RP Energy to
submit a PDR in order to assess the environmental impact of the planned
modifications relative to the second amendment.
In their Petition before this Court, the Casiño Group boldly asserts that "[t]here is
nothing in the Project Description Report that provides an environmental impact
assessment of the effects of constructing and operating a single 300-MW
generating unit." 196However, to our dismay, as in their other serious allegations
in their Petition for Writ of Kalikasan, the same is, likewise, baseless. Apart from
such a sweeping claim, the Casiño Group has provided no evidence or argument
to back up the same.
An examination of the PDR readily reveals that it contains the details of the
proposed modifications 197 and an express finding that nosignificant
environmental impact will be generated by such modifications, as in fact it is
expected that the operation of the power plant will become more efficient
as a result of the change from 2 x 150 MW to 1 x 300 MW
configuration. 198 Consequently, the PDR merely reiterates the same mitigating
measures that will presumably address the minor modifications to the project
design. Again, noevidence was presented to show substantial errors or
misrepresentations in these data or their inadequacy for providing the bases for
the DENR-EMB to assess the environmental impact of the proposed
modifications under the second amendment.
In fine, absent proof to the contrary, bearing in mind that allegations are not
proof, we sustain the procedure adopted by the DENR-EMB in requiring RP
Energy to submit a PDR and, on the basis thereof, approving the request for the
second amendment.
In another vein, we note that the appellate court proceeded from the erroneous
premise that the EIA is a document, when it repeatedly stated that the
amendments to the ECC require a new EIA, and not merely an EPRMP or PDR.
The appellate court relied on the proviso in the ECC, which stated that "[a]ny
expansion of the project beyond the project description or any change in the
activity or transfer of location shall be subject to a new Environmental Impact
Assessment." 199
However, as correctly pointed out by the DENR and RP Energy, the EIA is
not a document but a process: ATHCDa

Environmental Impact Assessment (EIA) — process that involves

evaluating and predicting 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
community's welfare. The process is undertaken by, among others, the
 project proponent and/or EIA Consultant, EMB, a Review Committee,
affected communities and other stakeholders. 200 (Emphasis supplied)
When the proviso in the ECC, therefore, states that a new EIA shall be
conducted, this simply means that the project proponent shall be required to
submit such study or report, as warranted by the DENR Rules and
circumstances, which will sufficiently aid the DENR in making a new EIA and,
thus, determine whether to grant the proposed amendment (or project
modification). As we have seen, consistent with DAO 2003-30 and the
Revised Manual, the DENR required RP Energy to submit an EPRMP
and a PDR relative to the latter's request involving the first and second
amendments, respectively, which led to the new EIA of the project in
compliance with the proviso of the ECC.
Verily, the various EIA documents, such as the EPRMP and PDR, are mere tools
used by the DENR to assess the environmental impact of a particular project.
These documents are flexibly used by the DENR, as the circumstances warrant,
in order to adequately assess the impacts of a new project or modifications
thereto. Being the administrative agency entrusted with the determination of
which EIA document type applies to a particular application for an amendment to
an ECC, falling as it does within its particular technical expertise, we must accord
great respect to its determination, absent a showing of grave abuse of discretion
or patent illegality.
In sum, we find that the appellate court erred when it ruled that the first and
second amendments to the subject ECC were invalid for failure to comply
with a new EIA and for violating DAO 2003-30 and the Revised Manual. The
appellate court failed to properly consider the applicable provisions in DAO 2003-
30 and the Revised Manual on amendments to ECCs. Our examination of the
provisions on amendments to ECCs, as well as the EPRMP and PDR
themselves, shows that the DENR reasonably exercised its discretion in requiring
an EPRMP and a PDR for the first and second amendments, respectively.
Through these documents, which the DENR reviewed, a new EIA was conducted
relative to the proposed project modifications. Hence, absent sufficient showing
of grave abuse of discretion or patent illegality, relative to both the procedure and
substance of the amendment process, we uphold the validity of these
amendments.
IV.
Whether the Certificate of Non-Overlap (CNO), under Section 59 of the IPRA
Law, is a precondition to the issuance of an ECC and the lack of its prior
issuance rendered the ECC invalid.
The appellate court ruled that the ECC issued in favor of RP Energy on
December 22, 2008 is invalid because the CNO covering the subject project was
issued only on October 31, 2012 or almost four years from the time of issuance
of the ECC. Thus, the ECC was issued in violation of Section 59 of the IPRA Law
and its implementing rules which require that a CNO be obtained prior to the
issuance of a government agency of, among others, a license or permit. In so
ruling, the appellate court implicitly upheld the Casiño Group's argument that the
ECC is a form of government license or permit pursuant to Section 4 of PD 1586
which requires all entities to secure an ECC before (1) engaging in an
environmentally critical project or (2) implementing a project within an
environmentally critical area.
The DENR and RP Energy, however, argue that an ECC is not the license or
permit contemplated under Section 59 of the IPRA Law and its implementing
rules as may be deduced from the definition, nature and scope of an ECC under
DAO 2003-03 and the Revised Manual. The DENR explains that the issuance of
an ECC does not exempt the project proponent from securing other permits and
clearances as required under existing laws, including the CNO, and that the final
decision on whether a project will be implemented lies with the concerned local
government unit/s or the lead government agency which has sectoral mandate to
promote the government program where the project belongs.
We agree with the DENR and RP Energy.
Section 59, Chapter VIII of the IPRA Law provides:
SEC. 59. Certification Precondition. — All departments and other
governmental agencies shall henceforth be strictly enjoined from
issuing, renewing, or granting any concession, license or lease, or
entering into any production-sharing agreement, without prior
certification from the NCIP that the area affected does not overlap
with any ancestral domain. Such certification shall only be issued
after a field-based investigation is conducted by the Ancestral Domains
Office of the area concerned: Provided, That no certification shall be
issued by the NCIP without the free and prior informed and written
consent of ICCs/IPs concerned: Provided, further, That no department,
government agency or government-owned or -controlled corporation
may issue new concession, license, lease, or production sharing
agreement while there is a pending application for a CADT: Provided,
finally, That the ICCs/IPs shall have the right to stop or suspend, in
accordance with this Act, any project that has not satisfied the
requirement of this consultation process. (Emphasis supplied)
aDcEIH

While Section 9, Part II, Rule VIII of National Commission on Indigenous

Peoples (NCIP) Administrative Order No. 01-98 201 states:
SECTION 9. Certification Precondition Prior to Issuance of any Permits
or Licenses. —
 a. Need for Certification. No department of government or other
agencies shall issue, renew or grant any concession,license,
lease, permit, or enter into any production sharing
agreement without a prior certification from the NCIP that the area
affected does not overlap any ancestral domain.
b. Procedure for Issuance of Certification by NCIP.
1) The certification, above mentioned, shall be issued by the Ancestral
Domain Office, only after a field based investigation that such areas are
not within any certified or claimed ancestral domains.
2) The certification shall be issued only upon the free, prior, informed
and written consent of the ICCs/IPs who will be affected by the operation
of such concessions, licenses or leases or production-sharing
agreements. A written consent for the issuance of such certification shall
be signed by at least a majority of the representatives of all the
households comprising the concerned ICCs/IPs. (Emphasis supplied)
As may be deduced from its subtitle, Section 59 requires as a precondition,
relative to the issuance of any concession, license, lease or agreement over
natural resources, a certification issued by the NCIP that the area subject thereof
does not lie within any ancestral domain. 202 This is in keeping with the State
policy to protect the rights of Indigenous Cultural Communities/Indigenous
Peoples (ICCs/IPs) to their ancestral domains in order to ensure their economic,
social and cultural well-being as well as to recognize the applicability of
customary laws governing property rights or relations in determining the
ownership and extent of such ancestral domain. 203
The IPRA Law and its implementing rules do not define the terms "license" and
"permit" so that resort to their plain or ordinary meaning in relation to the
intendment of the law is appropriate.
A "license" has been defined as "a governmental permission to
perform a particular act (such as getting married), conduct a particular business
or occupation, operate machinery or vehicles after proving capacity and ability to
do so safely, or use property for a certain purpose" 204 while a "permit" has been
defined as "a license or other document given by an authorized public official or
agency (building inspector, department of motor vehicles) to allow a person or
business to perform certain acts." 205 aDcEIH

The evident intention of Section 59, in requiring the CNO prior to the issuance
of a license or permit, is to prevent the implementation of a project that may
impair the right of ICCs/IPs to their ancestral domains. The law seeks to ensure
that a project will not overlap with any ancestral domain prior to its
implementation and thereby pre-empt any potential encroachment of, and/or
damage to the ancestral domains of ICCs/IPs without their prior and informed
consent.
With these considerations in mind, we now look at the definition, nature and
scope of an ECC in order to determine if it falls within the ambit of a "license" or
"permit" to which the CNO requirement, under Section 59 of the IPRA Law and
its implementing rules, finds application.
Section 4 of PD 1586 provides, in part:
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 re-alignment
of government personnel, and their specific functions and
responsibilities. (Emphasis supplied)
While the above statutory provision reveals that the ECC is an indispensable
requirement before (1) the conduct of an environmentally critical project or (2) the
implementation of a project in an environmentally critical area, it does not follow
that the ECC is the "license" or "permit" contemplated under Section 59 of the
IPRA Law and its implementing rules.
Section 3 (d), Article I of DAO 2003-03 defines an ECC in this wise:
SECTION 3. Definition of Terms. —
For the purpose of this Order, the following definitions shall be applied:
xxx xxx xxx
d. Environmental Compliance Certificate (ECC) — document issued by
the DENR/EMB after a positive review of an ECC application, certifying
that based on the representations of the proponent, the proposed project
or undertaking will not cause significant negative environmental impact.
The ECC also certifies that the proponent has complied with all the
requirements of the EIS System and has committed to implement its
approved Environmental Management Plan. The ECC contains specific
measures and conditions that the project proponent has to undertake
before and during the operation of a project, and in some cases, during
 the project's abandonment phase to mitigate identified environmental
impacts. CTcSAE

In turn, Section 1.0, paragraphs 3 and 6 of the Revised Manual provide, in

part:
3) Purpose of the EIA Process
As a basic principle, EIA is used to enhance planning and guide
decision-making. In this Manual, EIA is primarily presented in the context
of a requirement to integrate environmental concerns in the planning
process of projects at the feasibility stage. Through the EIA Process,
adverse environmental impacts of proposed actions are considerably
reduced through a reiterative review process of project siting, design and
other alternatives, and the subsequent formulation of environmental
management and monitoring plans. A positive determination by the
DENR-EMB results to the issuance of an Environmental Compliance
Commitment (ECC) document, to be conformed to by the Proponent and
represents the project's Environmental Compliance Certificate. The
release of the ECC allows the project to proceed to the next stage
of project planning, which is the acquisition of approvals from
other government agencies and LGUs, after which the project can
start implementation.
xxx xxx xxx
6) The EIA Process in Relation to Other Agencies' Requirements
It is inherent upon the EIA Process to undertake a comprehensive and
integrated approach in the review and evaluation of environment-related
concerns of government agencies (GAs), local government units (LGUs)
and the general public. The subsequent EIA findings shall provide
guidance and recommendations to these entities as a basis for their
decision making process.
a) An Inter-agency MOA on EIS Streamlining was entered into in 1992
by 29 government agencies wherein ECC of covered projects was
agreed to be a pre-requisite of all other subsequent government
approvals;
b) DENR Memo Circular No. 2007-08 issued on 13 July 2007 reiterates
in effect the intent of the MOA and reinforces the role of the
ECC/CNC as a guidance document to other agencies and
LGUs, as follows:
i) "No permits and/or clearances issued by other National
Government Agencies and Local Government Units shall
be required in the processing of ECC or CNC applications.
ii) The findings and recommendations of the EIA shall be
transmitted to relevant government agencies for them to
 integrate in their decision making prior to the issuance of
clearances, permits and licenses under their mandates.
iii) The issuance of an ECC or CNC for a project under the EIS
System does not exempt the Proponent from securing
other government permits and clearances as required by
other laws. The current practice of requiring various
permits, clearances and licenses only constrains the EIA
evaluation process and negates the purpose and function
of the EIA."
iv) Henceforth, all related previous instructions and other
issuances shall be made consistent with the Circular.
c) "Permits, licenses and clearances" are inclusive of other national and
local government approvals such as endorsements, resolutions,
certifications, plans and programs, which have to be
cleared/approved or other government documents required within
the respective mandates and jurisdiction of these agencies/LGUs.
xxx xxx xxx
f) The final decision whether a project will be implemented or not
lies either with the LGUs who have spatial jurisdiction over
the project or with the lead government agency who has
sectoral mandate to promote the government program where
the project belongs, e.g., DOE for energy projects; DENR-MGB
for mining projects. (Emphasis supplied)
As can be seen, the issuance of the ECC does not, by and of itself, authorize
the implementation of the project. Although it is indispensable before the
covered project can be commenced, as per Section 4 of PD 1586, the
issuance of the ECC does not, as of yet, result in the implementation of the
project. Rather, the ECC is intended to, among others, provide guidance or
act as a decision-making tool to other government agencies and LGUs which
have the final authority to grant licenses or permits, such as building permits
or licenses to operate, that will ultimately result in, or authorize the
implementation of the project or the conduct of specific activities.
As a consequence, we find that the CNO requirement under Section 59 of the
IPRA Law is not required to be obtained prior to the issuance of an ECC. As
previously discussed, Section 59 aims to forestall the implementation of a project
that may impair the right of ICCs/IPs to their ancestral domains, by ensuring or
verifying that a project will not overlap with any ancestral domain prior to its
implementation. However, because the issuance of an ECC does not result in the
implementation of the project, there is no necessity to secure a CNO prior to an
ECC's issuance as the goal or purpose, which Section 59 seeks to achieve, is, at
the time of the issuance of an ECC, not yet applicable. HcTIDC
In sum, we find that the ECC is not the license or permit contemplated under
Section 59 of the IPRA Law and its implementing rules. Hence, there
is no necessity to secure the CNO under Section 59 before an ECC may be
issued and the issuance of the subject ECC without first securing the aforesaid
certification does not render it invalid.
V.
Whether the Certificate of Non-Overlap (CNO), under Section 59 of the IPRA
Law, is a precondition to the consummation of the Lease and Development
Agreement (LDA) between SBMA and RP Enemy and the lack of its prior
issuance rendered the LDA invalid.
We now turn to the applicability of Section 59 of the IPRA Law to the LDA
entered into between the SBMA and RP Energy on June 8, 2010. Similar to the
ECC, the LDA was entered into prior to the issuance of the CNO on October 31,
2012.
Before this Court, SBMA and RP Energy reiterate their arguments on why the
CNO is no longer necessary in the instant case, to wit:
1. Prior to entering into the LDA with RP Energy, SBMA entered
into a lease agreement with HHIC 206 -Philippines, Inc.
and a CNO was already issued therefor which, for all intents
and purposes, is applicable to the area leased by RP Energy
being part of contiguous lots in Redondo Peninsula.
2. The site of the power plant project is very distant from the
boundaries of the lone area at the Subic Bay Freeport Zone
covered by an Aeta Community's Certificate of Ancestral
Domain Title (CADT).
3. There was no indigenous community within the vicinity of the
project area as stated in RP Energy's EIS.
4. The land where the project is located was subsequently
classified as industrial by the SBMA.
5. The scoping/procedural screening checklist classified as "not
relevant" the issue of indigenous people.
6. Ms. Mercado, who was part of the team which prepared the EIS,
testified that she visited the project site ten or more times
and did not see any Aeta communities there.
7. Mr. Evangelista testified that the project site used to be a firing
range of the U.S. Armed Forces which would make it
impossible to be a settlement area of indigenous
communities.
 8. Atty. Rodriguez stated that the project site is not covered
by a CADT and that from the start of negotiations on the
LDA, the SBMA Ecology Center verified with the NCIP that
there was no application for said area to be covered
by aCADT.
RP Energy further argues that, in any case, as a matter of prudence, it
secured a CNO from the NCIP. On October 31, 2012, the NCIP issued the
subject CNO over the project site, which should erase any doubt as to whether it
overlaps with an ancestral domain.
Upholding the arguments of the Casiño Group, the appellate court ruled that
SBMA failed to comply with the CNO requirement and, thus, the LDA entered
into between SBMA and RP Energy is invalid. It rejected the reasons given by
SBMA and RP Energy, to wit:
1. RP Energy's reliance on its own field investigation
that no indigenous community was found within the vicinity is
unavailing because it was not the field investigation by the
NCIP required by the IPRA Law.
2. RP Energy acknowledged that Aetas were among the earliest
settlers in the municipality where the project will be built.
Hence, it was not clearly shown that in 2008, at the time the
LDA was entered into, there were no indigenous
communities in the project site.
3. SBMA's representation that the project site is industrial relies
on a letter dated March 5, 2008 and the scoping checklist,
which are hearsay evidence.
4. The statements of Atty. Rodriguez have no probative value
because he is not an officer of SBMA Ecology Center or an
officer of NCIP.
5. At the time the CNO was issued on October 31, 2012, and the
field investigation relative thereto was conducted by the
NCIP, the project site no longer reflected the actual condition
on December 22, 2008 when the LDA was entered into
because the households which occupied the site had already
been relocated by then. DcICEa

6. SBMA, prior to entering into a lease agreement with HHIC,

secured a CNO, but oddly did not do the same with respect
to the lease agreement with RP Energy, considering that
both leases cover lands located within the same peninsula.
 RP Energy appears to have been accorded a different
treatment.
7. The CNO issued in favor of HHIC cannot justify the lack
of a CNO for the power plant project because the two
projects are situated in different locations: the HHIC project
is located in Sitio Agusuhin, while the power plant project is
located in Sitio Naglatore.
While we agree with the appellate court that a CNO should have been secured
prior to the consummation of the LDA between SBMA and RP Energy, and not
after, as was done here, we find that, under the particular circumstances of this
case, the subsequent and belated compliance with the CNO requirement does
not invalidate the LDA.
For convenience, and as starting point of our analysis, we reproduce Section 59
of the IPRA Law below:
SEC. 59. Certification Precondition. — All departments and other
governmental agencies shall henceforth be strictly enjoined from
issuing, renewing, or granting any concession, license or lease, or
entering into any production-sharing agreement, without prior
certification from the NCIP that the area affected does not overlap
with any ancestral domain. Such certification shall only be issued
after a field-based investigation is conducted by the Ancestral Domains
Office of the area concerned: Provided, That no certification shall be
issued by the NCIP without the free and prior informed and written
consent of ICCs/IPs concerned: Provided, further, That no department,
government agency or government-owned or -controlled corporation
may issue new concession, license, lease, or production sharing
agreement while there is a pending application for a CADT: Provided,
finally, That the ICCs/IPs shall have the right to stop or suspend, in
accordance with this Act, any project that has not satisfied the
requirement of this consultation process. (Emphasis supplied)
The law is clear but its actual operation or application should not be
interpreted beyond the bounds of reason or practicality.
We explain.
Indeed, a CNO is required prior to the grant of a lease by all government
agencies, including the SBMA. Again, the evident intention is to prevent the
impairment of the right of ICCs/IPs to their ancestral domains. A lease, such as
the LDA under consideration, would result in, among others, granting RP Energy
the right to the use and enjoyment of the project site to the exclusion of third
parties. 207As such, the lease could conceivably encroach on an ancestral
domain if the CNO is not first obtained.CDAcIT
However, implicit in the operation of Section 59 is the practical reality that the
concerned government agency must make a preliminary determination on
whether or not to obtain the required certification in the first place. To
expound, a government agency, which wishes to lease part of its property
located near Padre Faura Street, Manila City could not, and should not be
reasonably expected to obtain the CNO, as it is obviously inapplicable to its
planned lease. In contrast, a government agency, which intends to
lease a property in avalley or mountainous region, where indigenous
communities are known to reside, conduct hunting activities, perform rituals, or
carry out some other activities, should be reasonably expected to secure the
CNO prior to consummating the planned lease with third persons.
Even if the indigenous community does not actually reside on the proposed lease
site, the government agency would still be required to obtain the
CNO precisely to rule out the possibility that the proposed lease site encroaches
upon an ancestral domain. The reason for this is that an ancestral domain does
not only cover the lands actually occupied by an indigenous community, but all
areas where they have a claim of ownership, through time immemorial use, such
as hunting, burial or worship grounds and to which they have traditional access
for their subsistence and other traditional activities. 208
The wording of the law itself seems to presuppose that if the concession, lease,
license or production-sharing agreement is over natural resources, then the CNO
should be first obtained. This is because the last term, "production-sharing
agreement," normally refers to natural resources. But the problem arises as to
what should be considered "natural resources"; for a vacant lot, near Padre
Faura Street, or a forest land, in Mt. Banahaw, could both be considered as
"natural resources," depending on the restrictive or expansive understanding of
that term.
After due consideration, we find that the proper rule of action, for purposes of
application of Section 59, is that all government offices should undertake proper
and reasonable diligence in making a preliminary determination on whether to
secure the CNO, bearing in mind the primordial State interest in protecting the
rights of ICCs/IPs to their ancestral domains. They should consider the nature
and location of the areas involved; the historical background of the aforesaid
areas relative to the occupation, use or claim of ownership by ICCs/IPs; the
present and actual condition of the aforesaid areas like the existence of ICCs/IP's
within the area itself or within nearby territories; and such other considerations
that would help determine whether a CNO should be first obtained prior to
granting aconcession, lease, license or permit, or entering into a production-
sharing agreement.
If there are circumstances that indicate that a claim of ownership by ICCs/IPs
may be present or a claim of ownership may be asserted in the future, no matter
how remote, the proper and prudent course of action is to obtain the CNO. In
case of doubt, the doubt should be resolved in favor of securing the CNO and,
thus, the government agency is under obligation to secure the aforesaid
certification in order to protect the interests and rights of ICCs/IP's to their
ancestral domains. This must be so if we are to accord the proper respect due to,
and adequately safeguard the interests and rights of, our brothers and sisters
belonging to ICCs/IPs in consonance with the constitutional policy 209 to promote
and protect the rights of ICCS/IPs as fleshed out in the IPRA Law and its
implementing rules.
In the case at bar, we find, applying this rule of action, that the SBMA should
have first secured a CNO before entering into the LDA with RP Energy for the
following reasons.
First, the Subic area is historically known to be the home of our brothers and
sisters belonging to the Aeta communities. In particular, the EIS 210 itself of RP
Energy noted that Aeta communities originally occupied the proposed project site
of the power plant. Thus, even if we assume that, at the time of the ocular
inspection of the proposed project site in 2008, there were no Aeta communities
seen thereat, as claimed by RP Energy, the exercise of reasonable prudence
should have moved SBMA and RP Energy to secure a CNO in order to rule out
the possibility that the project site may overlap with an ancestral domain. This is
especially so, in view of the observation previously made, that lack of actual
occupation by an indigenous community of the area does not necessarily mean
that it is not a part of an ancestral domain because the latter encompasses areas
that are not actually occupied by indigenous communities but are used for other
purposes like hunting, worship or burial grounds.
Second, SBMA and RP Energy claim that the SBMA Ecology Center verified with
the NCIP that the project site does not overlap with an ancestral domain.
However, the person, who allegedly did the verification, and the officer from the
NCIP, who was contacted in this alleged verification, were not presented in court.
Assuming that this verification did take place and that the SBMA Ecology Center
determined that there is no pending application for a CADT covering the project
site and that the presently recognized CADT of Aeta communities is too far away
from the project site, it still does not follow that the CNO under Section 59 should
have been dispensed with.
The acts of individual members of a government agency, who allegedly checked
with the NCIP that the project site does not overlap with an ancestral domain,
cannot substitute for the CNO required by law. The reason is obvious. Such
posture would circumvent the noble and laudable purposes of the law in
providing the CNO as the appropriate mechanism in order to validly and officially
determine whether a particular project site does not overlap with an ancestral
domain. It would open the doors to abuse because a government agency can
easily claim that it checked with the NCIP regarding any application for an
ancestral domain over a proposed project site while stopping short of
securing a CNO. To reiterate, the legally mandated manner to verify if a project
site overlaps with an ancestral domain is the CNO, and not through personal
verification by members of a government agency with the NCIP.
Third, that the project site was formerly used as the firing range of the U.S.
Armed Forces does not preclude the possibility that apresent or future claim of
ancestral domain may be made over the aforesaid site. The concept of an
ancestral domain indicates that, even if the use of an area was interrupted by the
occupation of foreign forces, it may still be validly claimed to be an ancestral
domain.211
Fourth, that the project site was subsequently classified by the SBMA as forming
part of an industrial zone does not exempt it from the CNO requirement. The
change in the classification of the land is not an exception to the CNO
requirement under the IPRA Law. Otherwise, government agencies can easily
defeat the rights of ICCs/IPs through the conversion of land use.
Fifth, SBMA argues that the CNO issued to HHIC should, for all intents and
purposes, be applicable to RP Energy. However, as correctly ruled by the
appellate court, the CNO issued to HHIC's shipyard cannot be extended to RP
Energy's project site because they involve two different locations although found
within the same land mass. The CNO issued in favor of HHIC clearly states that
the findings in the CNO are applicable only to the shipyard location of HHIC.
Last, the steps taken by SBMA, in securing a CNO prior to its lease agreement
with HHIC, was the proper and prudent course of action that should have been
applied to the LDA with RP Energy. It does not matter that HHIC itself asked for
the CNO prior to entering into alease agreement with SBMA, as claimed by
SBMA, while RP Energy did not make such a request because, as we have
discussed, SBMA had the obligation, given the surrounding circumstances, to
secure a CNO in order to rule out the possibility that the project site overlapped
with an ancestral domain.
All in all, we find, applying the foregoing rule of action, that SBMA should have
secured a CNO before entering into the LDA with RP Energy. Considering that
Section 59 is a prohibitory statutory provision, a violation thereof would ordinarily
result in the nullification of the contract. 212 However, we rule that the harsh
consequences of such a ruling should not be applied to the case at bar. DHITSc

The reason is that this is the first time that we lay down the foregoing rule of
action so much so that it would be inequitable to retroactively apply its effects
with respect to the LDA entered into between SBMA and RP Energy. We also
note that, under the particular circumstances of this case, there is no showing
that SBMA and RP Energy had a deliberate or ill intent to escape, defeat or
circumvent the mandate of Section 59 of the IPRA Law. On the contrary, they
appear to have believed in good faith, albeit erroneously, that a CNO
was no longer needed because of the afore-discussed defenses they raised
herein. When the matter of lack of a CNO relative to the LDA was brought to their
attention, through the subject Petition for Writ of Kalikasan filed by
the Casiño Group, RP Energy, with the endorsement of SBMA, promptly
undertook to secure the CNO, which was issued on October 31, 2012 and stated
that the project site does not overlap with any ancestral domain. 213
Thus, absent proof to the contrary, we are not prepared to rule that SBMA and
RP Energy acted in bad faith or with inexcusable negligence, considering that the
foregoing rule of action has not heretofore been laid down by this Court.
As a result, we hold that the LDA should not be invalidated due to equitable
considerations present here.
By so ruling, we clarify that we reject RP Energy's claim that the belated
submission of the CNO is an "over compliance" on its part. Quite the contrary, as
we have discussed, the CNO should have been first secured given the
surrounding circumstances of this case.
In the same vein, we reject SBMA's argument that the belated application for,
and submission of the CNO cured whatever defect the LDA had. We have
purposely avoided a ruling to the effect that a CNO secured subsequent to the
concession, lease, license, permit or production-sharing agreement will cure the
defect. Such a ruling would lead to abuse of the CNO requirement since the
defect can be cured anyway by a subsequent and belated application for a CNO.
Government agencies and third parties, either through deliberate intent or
negligence, may view it as an excuse not to timely and promptly secure the CNO,
even when the circumstances warrant the application for a CNO under the afore-
discussed rule of action, to the damage and prejudice of ICCs/IPs. Verily, once
the concession, lease, license or permit is issued, or the agreement is entered
into without the requisite CNO, consequent damages will have already occurred
if it later turns out that the site overlaps with an ancestral domain. This is so even
if the ICCs/IPs can have the project stopped upon discovery that it overlapped
with their ancestral domain under the last proviso 214 of Section 59. To prevent
this evil, compliance with the CNO requirement should be followed through the
afore-discussed rule of action.
In sum, we rule that a CNO should have been secured prior to the consummation
of the LDA between SBMA and RP Energy. However, considering that this is the
first time we lay down the rule of action appropriate to the application of Section
59, we refrain from invalidating the LDA due to equitable considerations.
VI.
 Whether compliance with Section 27, in relation to Section 26, of the LGC
(i.e., approval of the concerned sanggunian requirement) is necessary prior to
the implementation of the power plant project.
Sustaining the arguments of the Casiño Group, the appellate court ruled that the
subject project cannot be constructed and operated until after the prior approval
of the concerned sanggunian requirement, under Section 27 of the LGC, is
complied with. Hence, the ECC and LDA could not be validly granted and
entered into without first complying with the aforesaid provision. It held that all the
requisites for the application of the aforesaid provision are present. As to the
pertinent provisions of RA 7227 or "The Bases Conversion and Development Act
of 1992," which grants broad powers of administration to the SBMA over the
Subic Special Economic Zone (SSEZ), the appellate court ruled that RA 7227
contains a provision recognizing the basic autonomy of the LGUs which joined
the SSEZ. Thus, the LGC and RA 7227 should be harmonized whereby the
concerned sanggunian's power to approve under Section 27 must be respected.
The DENR impliedly agrees with the Casiño Group that compliance with Section
27 is still required but without clearly elaborating its reasons therefor.
The SBMA and RP Energy, however, argue that the prior approval of the
concerned sanggunian requirement, under Section 27, is inapplicable to the
subject project because it is located within the SSEZ. The LGC and RA 7227
cannot be harmonized because of the clear mandate of the SBMA to govern and
administer all investments and businesses within the SSEZ. Hence, RA 7227
should be deemed as carving out an exception to the prior approval of the
concernedsanggunian requirement insofar as the SSEZ is concerned.
We agree with the SBMA and RP Energy.

Preliminarily, we note that Sections 26 and 27 of the LGC contemplate

two requirements: (1) prior consultations and (2) prior approval of the
concerned sanggunian, viz.: acADIT

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 cropland, 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.
(Emphasis supplied)
 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. (Emphasis supplied)
In the case at bar, the Casiño Group only questions the alleged lack of the
prior approval of the concerned sanggunians under Section 27 of the LGC.
Thus, we shall limit our discussion to the resolution of this issue.
(Parenthetically, we note that prior consultations, as required by Section 26 of
the LGC, appear to have been complied with. This may be gleaned from the
EIS of RP Energy which contains the documentation of the extensive public
consultations held, under the supervision of the DENR-EMB, relative to the
subject project, as required by the EIA process, 215 as well as the social
acceptability policy consultations conducted by the SBMA, which generated
the document entitled "Final Report: Social Acceptability Process for RP
Energy, Inc.'s 600-MW Coal Plant Project," as noted and discussed in an
earlier subsection.) 216
We also note that the Casiño Group argues that the approval of the
concerned sanggunian requirement was necessary prior to the issuance of the
ECC and the consummation of the LDA; the absence of which invalidated the
ECC and LDA.
We shall no longer discuss at length whether the approval of the
concerned sanggunian requirement must be complied with prior to the issuance
of an ECC. As discussed in an earlier subsection, the issuance of an ECC does
not, by itself, result in the implementation of the project. Hence, the purpose or
goal of Sections 26 and 27 of the LGC, like Section 59 of the IPRA Law, does not
yet obtain and, thus, the ECC may be issued even without prior compliance with
Sections 26 and 27 of the LGC.
We, thus, limit the discussion as to whether the approval of the
concerned sanggunian requirement should have been complied with prior to the
consummation of the LDA, considering that the LDA is part of the implementation
of the subject project and already vests in RP Energy the right to the use and
enjoyment of the project site, as in fact horizontal clearing activities were already
undertaken by RP Energy at the project site by virtue of the LDA.
The prior approval of the concerned sanggunian requirement is an attribute and
implementation of the local autonomy granted to, and enjoyed by LGUs under
the Constitution. 217 The LGU has the duty to protect its constituents and
interests in the implementation of the project. Hence, the approval of the
concerned sanggunian is required by law to ensure that local communities
partake in the fruits of their own backyard. 218
For Section 27, in relation to Section 26, to apply, the following requisites must
concur: (1) the planning and implementation of the project or program is vested
in a national agency or government-owned and -controlled corporation, i.e.,
national programs and/or projects which are to be implemented in a particular
local community; and (2) the project or program may cause pollution, climatic
change, depletion of non-renewable resources, loss of cropland, rangeland, or
forest cover, extinction of animal or plant species, or call for the eviction
of a particular group of people residing in the locality where the project will be
implemented. 219
In the case at bar, the two requisites are evidently present: (1) the planning and
implementation of the subject project involves the Department of Energy, DENR,
and SBMA; and (2) the subject project may cause pollution, climatic change,
depletion of non-renewable resources, loss of cropland, rangeland, or forest
cover, and extinction of animal or plant species, or call for the eviction
of a particular group of people residing in the locality where the project will be
implemented. Hence, Section 27 of the LGC should ordinarily apply.
It is not disputed that no approval was sought from the
concerned sanggunians relative to the subject project. What is more, the affected
LGUs have expressed their strong oppositions to the project through
various sanggunian resolutions. 220 However, it is also undisputed that the
subject project is located within the SSEZ and, thus, under the territorial
jurisdiction of the SBMA pursuant to RA 7227.
Thus, we are tasked to determine the applicability of the prior approval of the
concerned sanggunian requirement, under Section 27 of the LGC, relative
to a project within the territorial jurisdiction of the SBMA under RA 7227.
aTHCSE

RA 7227 was passed on March 13, 1992 in the aftermath of the Mount Pinatubo
eruption and the closure of the Subic Naval Base of the U.S. Armed Forces. It
sought to revive the affected areas by creating and developing the SSEZ
into a "self-sustaining industrial, commercial, financial and investment center to
generate employment opportunities in and around the zone and to attract and
promote productive foreign investments." 221 The SSEZ covered the City of
Olangapo and Municipality of Subic in the Province of Zambales and the lands
and its contiguous extensions occupied by the former U.S. Naval Base, which
traversed the territories of the Municipalities of Hermosa and Morong in the
Province of Bataan. Under Section 12 of RA 7227, the creation of the SSEZ was
made subject to the concurrence by resolution of the respective sanggunians of
the City of Olongapo and the Municipalities of Subic, Morong and Hermosa, viz.:
 SECTION 12. Subic Special Economic Zone. — Subject to the
concurrence by resolution of the sangguniang panlungsod of the City of
Olongapo and the sangguniang bayan of the Municipalities of Subic,
Morong and Hermosa, there is hereby created a Special Economic and
Free-port Zone consisting of the City of Olongapo and the Municipality of
Subic, Province of Zambales, the lands occupied by the Subic Naval
Base and its contiguous extensions as embraced, covered, and defined
by the 1947 Military Bases Agreement between the Philippines and the
United States of America as amended, and within the territorial
jurisdiction of the Municipalities of Morong and Hermosa, Province of
Bataan, hereinafter referred to as the Subic Special Economic Zone
whose metes and bounds shall be delineated in a proclamation to be
issued by the President of the Philippines. Within thirty (30) days after
the approval of this Act, each local government unit shall submit its
resolution of concurrence to join the Subic Special Economic Zone to the
office of the President. Thereafter, the President of the Philippines shall
issue a proclamation defining the metes and bounds of the Zone as
provided herein.
Subsequently, the aforesaid sanggunians submitted their respective
resolutions of concurrence and the President issued Presidential
Proclamation No. 532, Series of 1995, defining the metes and bounds of the
SSEZ.
In Executive Secretary v. Southwing Heavy Industries, Inc., 222 we described the
concept of SSEZ as a Freeport:
The Freeport was designed to ensure free flow or movement of goods
and capital within a portion of the Philippine territory in order to attract
investors to invest their capital in a business climate with the least
governmental intervention. The concept of this zone was explained by
Senator Guingona in this wise: TacSAE

Senator Guingona. Mr. President, the special economic zone is

successful in many places, particularly Hong Kong, which is afree
port. The difference between a special economic zone and an
industrial estate is simply expansive in the sense that the
commercial activities, including the establishment of banks,
services, financial institutions, agro-industrial activities, maybe
agriculture to a certain extent.
This delineates the activities that would have the least of
government intervention, and the running of the affairs of the
special economic zone would be run principally by the
investors themselves, similar to a housing subdivision,
where the subdivision owners elect their representatives to
run the affairs of the subdivision, to set the policies, to set
the guidelines.
 We would like to see Subic area converted into a little Hong
Kong, Mr. President, where there is a hub of free port and
free entry, free duties and activities to a maximum spur
generation of investment and jobs.
While the investor is reluctant to come in the Philippines,
as a rule, because of red tape and perceived delays, we envision
this special economic zone to be an area where there will be
minimum government interference.
The initial outlay may not only come from the Government or the
Authority as envisioned here, but from them themselves, because
they would be encouraged to invest not only for the land but also
for the buildings and factories. As long as they are convinced that
in such an area they can do business and reap reasonable profits,
then many from other parts, both local and foreign, would invest,
Mr. President. 223 (Emphasis in the original)
To achieve the above-mentioned purposes, the law created SBMA to
administer the SSEZ. In the process, SBMA was granted broad and
enormous powers as provided for under Section 13 (b) of RA 7227: ESAHca

Sec. 13. The Subic Bay Metropolitan Authority. —

xxx xxx xxx
(b) Powers and functions of the Subic Bay Metropolitan Authority — The
Subic Bay Metropolitan Authority, otherwise known as the Subic
Authority, shall have the following powers and function:
(1) To operate, administer, manage and develop the ship repair
and ship building facility, container port, oil storage and refueling
facility and Cubi Air Base within the Subic Special Economic and
Free-port Zone as a free market in accordance with the policies
set forth in Section 12 of this Act;
(2) To accept any local or foreign investment, business or
enterprise, subject only to such rules and regulations to be
promulgated by the Subic Authority in conformity with the policies
of the Conversion Authority without prejudice to the
nationalization requirements provided for in the Constitution;
(3) To undertake and regulate the establishment, operation
and maintenance of utilities, other services and
infrastructure in the Subic Special Economic Zone including
shipping and related business, stevedoring and port terminal
services or concessions, incidental thereto and airport operations
in coordination with the Civil Aeronautics Board, and to fix just
and reasonable rates, fares charges and other prices therefor;
(4) To construct, acquire, own, lease, operate and maintain
on its own or through contract, franchise, license permits
bulk purchase from the private sector and build-operate
transfer scheme or joint-venture the required utilities and
infrastructure in coordination with local government units and
appropriate government agencies concerned and in conformity
with existing applicable laws therefor;
(5) To adopt, alter and use a corporate seal; to contract, lease,
sell, dispose, acquire and own properties; to sue and be sued in
order to carry out its duties and functions as provided for in this
Act and to exercise the power of eminent domain for public use
and public purpose;
(6) Within the limitation provided by law, to raise and/or borrow
the necessary funds from local and international financial
institutions and to issue bonds, promissory notes and other
securities for that purpose and to secure the same by guarantee,
pledge, mortgage deed of trust, or assignment of its properties
held by the Subic Authority for the purpose of financing its
projects and programs within the framework and limitation of this
Act;
(7) To operate directly or indirectly or license tourism related
activities subject to priorities and standards set by the Subic
Authority including games and amusements, except horse racing,
dog racing and casino gambling which shall continue to be
licensed by the Philippine Amusement and Gaming Corporation
(PAGCOR) upon recommendation of the Conversion Authority; to
maintain and preserve the forested areas as a national park;
(8) To authorize the establishment of appropriate educational and
medical institutions;
(9) To protect, maintain and develop the virgin forests within the
baselands, which will be proclaimed as a national park and
subject to a permanent total log ban, and for this purpose, the
rules and regulations of the Department of Environment and
Natural Resources and other government agencies directly
involved in the above functions shall be implemented by the Subic
Authority;
(10) To adopt and implement measures and standards for
environmental pollution control of all areas within its territory,
including but not limited to all bodies of water and to enforce the
same. For which purpose the Subic Authority shall create an
Ecology Center; and
 (11) To exercise such powers as may be essential, necessary or
incidental to the powers granted to it hereunder as well as to carry
out the policies and objectives of this Act. (Emphasis supplied)
The Implementing Rules of RA 7227 further provide:
Sec. 11. Responsibilities of the SBMA. — Other than the powers and
functions prescribed in Section 10 of these Rules, the SBMA shall have
the following responsibilities:
CHATEa

(a) The SBMA shall exercise authority and jurisdiction over all
economic activity within the SBF; 224
xxx xxx xxx
(f) Consistent with the Constitution, the SBMA shall have the
following powers to enforce the law and these Rules in the SBF;
xxx xxx xxx
(8) to issue, alter, modify, suspend or revoke for cause, any
permit, certificate, license, visa or privilege allowed under the Act
or these Rules;
xxx xxx xxx
(11) to promulgate such other rules, regulations and circulars as
may be necessary, proper or incidental to carry out the policies
and objectives of the Act, these Rules, as well as the powers and
duties of the SBMA thereunder. 225
As can be seen, the SBMA was given broad administrative powers over the
SSEZ and these necessarily include the power to approve or disapprove the
subject project, which is within its territorial jurisdiction. But, as previously
discussed, the LGC grants the concernedsanggunians the power to approve and
disapprove this same project. The SBMA asserts that its approval of the project
prevails over the apparent disapproval of the concerned sanggunians. There is,
therefore, a real clash between the powers granted under these two laws.
Which shall prevail?
Section 12 of RA 7227 provides:
Sec. 12. Subic Special Economic Zone. . . .
The abovementioned zone shall be subjected to the following
policies:
(a) Within the framework and subject to the mandate and limitations of
the Constitution and the pertinent provisions of the Local Government
Code, the Subic Special Economic Zone shall be developed into a self-
sustaining, industrial, commercial, financial and investment center to
 generate employment opportunities in and around the zone and to
attract and promote productive foreign investments;
xxx xxx xxx
(i) Except as herein provided, the local government units comprising
the Subic Special Economic Zone shall retain their basic autonomy
and identity. The cities shall be governed by their respective charters
and the municipalities shall operate and function in accordance with
Republic Act No. 7160, otherwise known as the Local Government Code
of 1991. (Emphasis supplied)
This section sets out the basic policies underlying the creation of the SSEZ.
Indeed, as noted by the appellate court, Section 12 (i) expressly recognizes
the basic autonomy and identity of the LGUs comprising the SSEZ. However,
the clause "[e]xcept as herein provided" unambiguously provides that the
LGUs do not retain their basic autonomy and identity when it comes to
matters specified by the law as falling under the powers, functions and
prerogatives of the SBMA.
In the case at bar, we find that the power to approve or disapprove projects
within the SSEZ is one such power over which the SBMA's authority prevails
over the LGU's autonomy. Hence, there is no need for the SBMA to secure the
approval of the concernedsanggunians prior to the implementation of the subject
project.
This interpretation is based on the broad grant of powers to the SBMA over all
administrative matters relating to the SSEZ under Section 13 of RA 7227, as
afore-discussed. Equally important, under Section 14, other than those involving
defense and security, the SBMA's decision prevails in case of conflict between
the SBMA and the LGUs in all matters concerning the SSEZ, viz.:
Sec. 14. Relationship with the Conversion Authority and the Local
Government Units. —
(a) The provisions of existing laws, rules and regulations to the
contrary notwithstanding, the Subic Authority shall exercise
administrative powers, rule-making and disbursement of funds
over the Subic Special Economic Zone in conformity with the
oversight function of the Conversion Authority.
(b) In case of conflict between the Subic Authority and the local
government units concerned on matters affecting the Subic Special
Economic Zone other than defense and security, the decision of the
Subic Authority shall prevail. (Emphasis supplied)
Clearly, the subject project does not involve defense or security, but rather
business and investment to further the development of the SSEZ. Such is in line
with the objective of RA 7227 to develop the SSEZ into a self-sustaining
industrial, commercial, financial and investment center. Hence, the decision of
the SBMA would prevail over the apparent objections of the
concerned sanggunians of the LGUs.
Significantly, the legislative deliberations on RA 7227, likewise, support and
confirm the foregoing interpretation. As earlier noted, Section 13 b (4) of RA 7227
provides:
Sec. 13. The Subic Bay Metropolitan Authority. —
xxx xxx xxx
(b) Powers and functions of the Subic Bay Metropolitan Authority — The
Subic Bay Metropolitan Authority, otherwise known as the Subic
Authority, shall have the following powers and function:
xxx xxx xxx
(4) To construct, acquire, own, lease, operate and maintain on its own or
through contract, franchise, license permits bulk purchase from the
private sector and build-operate transfer scheme or joint-venture the
required utilities and infrastructure in coordination with local government
units and appropriate government agencies concerned and in conformity
with existing applicable laws therefor;
In the Senate, during the period of amendments, when the provision which
would eventually become the afore-quoted Section 13 b (4) of RA 7227 was
under consideration, the following exchanges took place:
Senator Laurel. Mr. President.
The President. Senator Laurel is recognized.
Senator Laurel. Relative to line 27 up to line 31 of page 16, regarding the
provision to the effect that the Authority will have the following functions:
"to construct, acquire, own, etcetera," that is all right.
My motion is that we amend this particular line, starting from the word
"structures", by deleting the words that follow on line 31, which states: "in
coordination with local government units and", and substitute the
following in place of those words: "SUBJECT TO THE APPROVAL OF
THE SANGGUNIAN OF THE AFFECTED LOCAL GOVERNMENT
UNITS AND IN COORDINATION WITH."
So, this paragraph will read, as follows: "to construct, own, lease,
operate, and maintain on its own or through contract, franchise, license
permits, bulk purchase from the private sector and build-operate-transfer
scheme or joint venture the required utilities and infrastructure SUBJECT
TO THE APPROVAL OF THE SANGGUNIAN OF THE AFFECTED
LOCAL GOVERNMENT UNITS AND IN coordination with appropriate
government agencies concerned and in conformity with existing
applicable laws therefor." ACcHIa

The President. What does the Sponsor say?

Senator Shahani. I believe this would cripple the Authority. I would
like to remind our Colleagues that in the Board of Directors, the
representatives of the local government units that agree to join with
the Subic Special Economic Zone will be members of the Board so
that they will have a say, Mr. President. But if we say "subject," that
is a very strong word. It really means that they will be the ones to
determine the policy.
So, I am afraid that I cannot accept this amendment, Mr. President.
Senator Laurel. May I respond or react, Mr. President.
The President. Yes.
Senator Laurel. The Constitution is there, very categorical in the
promotion and encouragement of local autonomy, and mandating
Congress to enact the necessary Local Government Code with
emphasis on local autonomy.
We have now Section 27 of the new Local Government Code which
actually provides that for every project in any local government territory,
the conformity or concurrence of the Sanggunian of every such local
government unit shall be secured in the form of resolution — the consent
of the Sanggunian.
The President. Well, both sides have already been heard. There is the
Laurel amendment that would make the power of the Subic Bay
Metropolitan Authority to construct, acquire, own, lease, operate and
maintain on its own or through contract, franchise, license, permits, bulk
purchases from private sector, build-operate-and-transfer scheme, or
joint venture, the required utilities and infrastructure, subject to approval
by the appropriate Sanggunian of the local government concerned.
This amendment to the amendment has been rejected by the Sponsor.
So, we are voting now on this amendment.
As many as are in favor of the Laurel amendment, say Aye. (Few
Senators: Aye.)
Those who are against the said amendment, say Nay. (Several
Senators: Nay.)
Senator Laurel. Mr. President, may I ask for a nominal voting. DaECST

The President. A nominal voting should be upon the request of one-fifth

of the Members of the House, but we can accommodate the Gentleman
by asking for a division of the House.
 Therefore, those in favor of the Laurel amendment, please raise their
right hands. (Few Senators raised their right hands.)
Senator Laurel. I was asking, Mr. President, for a nominal voting.
The President. A nominal voting can be had only upon motion of one-
fifth of the Members of the Body.
Senator Laurel. That is correct, Mr. President. But this is such an
important issue being presented to us, because this question is related
to the other important issue, which is: May an elected public official
of a particular government unit, such as a town or municipality,
participate as a member of the Board of Directors of this particular zone.
The President. The ruling of the Chair stands. The division of the House
is hereby directed.
As many as are in favor of the Laurel amendment, please
raised (sic) their right hands. (Few Senators raised their right hands.)
As many as are against the said amendment, please do likewise.
(Several Senators raised their right hands.)
The amendment is lost. 226 (Emphasis supplied)
Indubitably, the legislature rejected the attempts to engraft Section 27's prior
approval of the concerned sanggunian requirement under the LGC into RA
7227. Hence, the clear intent was to do away with the approval requirement of
the concerned sangguniansrelative to the power of the SBMA to approve or
disapprove a project within the SSEZ.
The power to create the SSEZ is expressly recognized in Section 117 of the
LGC, viz.:
TITLE VIII.
Autonomous Special Economic Zones
SECTION 117. Establishment of Autonomous Special Economic Zones.
— The establishment by law of autonomous special economic zones in
selected areas of the country shall be subject to concurrence by the local
government units included therein.
When the concerned sanggunians opted to join the SSEZ, they were, thus,
fully aware that this would lead to some diminution of their local autonomy in
order to gain the benefits and privileges of being a part of the SSEZ.
Further, the point of Senator Shahani that the representation of the concerned
LGUs in the Board of Directors will compensate for the diminution of their local
autonomy and allow them to be represented in the decision-making of the SBMA
is not lost on us. This is expressly provided for in Section 13 (c) of RA 7227, viz.:
SECTION 13. The Subic Bay Metropolitan Authority. —
 xxx xxx xxx
(c) Board of Directors. — The powers of the Subic Authority shall be
vested in and exercised by a Board of Directors, hereinafter
referred to as the Board, which shall be composed of fifteen (15)
members, to wit:
(1) Representatives of the local government units that concur
to join the Subic Special Economic Zone;
(2) Two (2) representatives from the National Government;
(3) Five (5) representatives from the private sector coming from
the present naval stations, public works center, ship repair
facility, naval supply depot and naval air station; and
(4) The remaining balance to complete the Board shall be
composed of representatives from the business and
investment sectors. (Emphasis supplied)
SBMA's undisputed claim is that, during the board meeting when the subject
project was approved, except for one, all the representatives of the concerned
LGUs were present and voted to approve the subject project. 227 Verily, the
wisdom of the law creating the SSEZ; the wisdom of the choice of the
concerned LGUs to join the SSEZ; and the wisdom of the mechanism of
representation of the concerned LGUs in the decision-making process of the
SBMA are matters outside the scope of the power of judicial review. We can
only interpret and apply the law as we find it.
In sum, we find that the implementation of the project is not subject to the prior
approval of the concerned sanggunians, under Section 27 of the LGC, and the
SBMA's decision to approve the project prevails over the apparent objections of
the concernedsanggunians of the LGUs, by virtue of the clear provisions of RA
7227. Thus, there was no infirmity when the LDA was entered into between
SBMA and RP Energy despite the lack of approval of the
concerned sanggunians. caEIDA

VII.
Whether the validity of the third amendment to the ECC can be resolved by
the Court.
The Casiño Group argues that the validity of the third amendment should have
been resolved by the appellate court because it is covered by the broad issues
set during the preliminary conference.
RP Energy counters that this issue cannot be resolved because it was expressly
excluded during the preliminary conference.
The appellate court sustained the position of RP Energy and ruled that this issue
was not included in the preliminary conference so that it cannot be resolved
without violating the right to due process of RP Energy.
We agree with the appellate court.
Indeed, the issue of the validity of the third amendment to the ECC was not part
of the issues set during the preliminary conference, as it appears at that time that
the application for the third amendment was still ongoing. The following
clarificatory questions during the aforesaid conference confirm this, viz.:
J. LEAGOGO:
So what are you questioning in your Petition?
ATTY. RIDON:
We are questioning the validity of the amendment, Your Honor.
J. LEAGOGO:
Which amendment?
ATTY. RIDON:
From 2 x 150 to 1 x 300, Your Honor.
J. LEAGOGO:
Your Petition does not involve the 2 x 300 which is still pending with the
DENR. Because you still have remedies there, you can make
your noise there, you can question it to your heart[']s content
because it is still pending
xxx xxx xxx
J. LEAGOGO:
Atty. Ridon, I go back to my question. We're not yet talking of the legal
points here. I'm just talking of what are you questioning. You are
questioning the 1 x 300?
ATTY. RIDON:
Yes, Your Honor.
J. LEAGOGO:
Because it was 2 x 150 and then 1 x 300?
ATTY. RIDON:
Yes, Your Honor.
J. LEAGOGO:
 Up to that point?
ATTY. RIDON:
Yes, Your Honor.
J. LEAGOGO:
Because there is no amended ECC yet for the 2 x 300 or 600. That's
clear enough for all of us.
ATTY. RIDON:
Yes, Your Honor. 228
Given the invocation of the right to due process by RP Energy, we must
sustain the appellate court's finding that the issue as to the validity of the third
amendment cannot be adjudicated in this case.
Refutation of the Partial Dissent.
Justice Leonen partially dissents from the foregoing disposition on the following
grounds:
(a) Environmental cases, such as a petition for a writ of kalikasan, should not, in
general, be litigated via a representative, citizen or class suit because of the
danger of misrepresenting the interests — and thus, barring future action due
to res judicata — of those not actually present in the prosecution of the case,
either because they do not yet exist, like the unborn generations, or because the
parties bringing suit do not accurately represent the interests of the group they
represent or the class to which they belong. As an exception, such
representative, citizen or class suit may be allowed subject to certain conditions;
and DCcHIS

(b) The amendments to the ECC, granted by the DENR in favor of RP Energy,
are void for failure to submit a new EIS in support of the applications for these
amendments to the subject ECC, and a petition for writ of kalikasan is not the
proper remedy to raise adefect in the ECC.
We disagree.
A.
Justice Leonen's proposition that environmental cases should not, in general, be
litigated via a representative, citizen or class suit is both novel and ground-
breaking. However, it is inappropriate to resolve such an important issue in this
case, in view of the requisites for the exercise of our power of judicial review,
because the matter was not raised by the parties so that the issue was not
squarely tackled and fully ventilated. The proposition will entail, as Justice
Leonen explains, an abandonment or, at least, a modification of our ruling in the
landmark case of Oposa v. Factoran. 229 It will also require an amendment
or a modification of Section 5 (on citizen suits), Rule 2 of the Rules of Procedure
for Environmental Cases. Hence, it is more appropriate to await a case where
such issues and arguments are properly raised by the parties for the
consideration of the Court.
B.
Justice Leonen reasons that the amendments to the subject ECC are void
because the applications therefor were unsupported by an EIS, as required by
PD 1151 and PD 1586. The claim is made that an EIS is required by law, even if
the amendment to the ECC is minor, because an EIS is necessary to determine
the environmental impact of the proposed modifications to the original project
design. The DENR rules, therefore, which permit the modification of the original
project design without the requisite EIS, are void for violating PD 1151 and PD
1586.
We disagree.
Indeed, Section 4 of PD 1151 sets out the basic policy of requiring an EIS in
every action, project or undertaking that significantly affects the quality of the
environment, viz.:
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.
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. (Emphasis supplied)
As earlier stated, the EIS was subsequently developed and strengthened through
PD 1586 which established the Philippine Environmental Impact Statement
System. Sections 4 and 5 of PD 1586 provide:
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 re-alignment
of government personnel, and their specific functions and
responsibilities.
For the same purpose as above, the Ministry of Human Settlements
shall: (a) prepare the proper land or water use pattern for said critical
project(s) or area(s); (b) establish ambient environmental quality
standards; (c) develop a program of environmental enhancement or
protective measures against calamituous factors such as earthquake,
floods, water erosion and others, and (d) perform such other functions as
may be directed by the President from time to time.
SECTION 5. 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. (Emphasis supplied)
These laws were, in turn, implemented by DAO 2003-30 and the Revised
Manual.
As correctly noted by Justice Leonen, Presidential Proclamation No. 2146 was
subsequently issued which, among others, classified fossil-fueled power plants
as environmentally critical projects.
In conformity with the above-quoted laws and their implementing issuances, the
subject project, a coal power plant, was classified by the DENR as an
environmentally critical project, new and single. Hence, RP Energy was required
to submit an EIS in support of its application for an ECC. RP Energy thereafter
complied with the EIS requirement and the DENR, after review, evaluation and
compliance with the other steps provided in its rules, issued an ECC in favor of
RP Energy. As can be seen, the EIS requirement was duly complied with.
Anent Justice Leonen's argument that the subsequent amendments to the ECC
were void for failure to prepare and submit a new EIS relative to these
amendments, it is important to note that PD 1586 does not state the procedure to
be followed when there is an application for an amendment to a previously
issued ECC. There is nothing in PD 1586 which expressly requires an EIS for an
amendment to an ECC.
In footnote 174 of the ponencia, it is stated:
Parenthetically, we must mention that the validity of the rules providing
for amendments to the ECC was challenged by the CasiñoGroup on the
ground that it is ultra vires before the appellate court. It argued that the
laws governing the ECC do not expressly permit the amendment of an
ECC. However, the appellate court correctly ruled that the validity of the
rules cannot be collaterally attacked. Besides, the power of the DENR to
issue rules on amendments of an ECC is sanctioned under the doctrine
of necessary implication. Considering that the greater power to deny or
grant an ECC is vested by law in the President or his authorized
representative, the DENR, there is no obstacle to the exercise of the
lesser or implied power to amend the ECC for justifiable reasons. This
issue was no longer raised before this Court and, thus, we no longer
tackle the same here. IaAEHD

Because PD 1586 did not expressly provide the procedure to be followed in

case of an application for an amendment to apreviously issued ECC, the
DENR exercised its discretion, pursuant to its delegated authority to
implement this law, in issuing DAO 2003-30 and the Revised Manual.
Justice Leonen's argument effectively challenges the validity of the provisions in
DAO 2003-30 and the Revised Manual relative to amendments to an ECC for
being contrary to PD 1151 and 1586.
We disagree.
First, to repeat, there is nothing in PD 1586 which expressly requires an EIS for
an amendment to an ECC.
Second, as earlier noted, the proposition would constitute a collateral attack on
the validity of DAO 2003-30 and the Revised Manual, which is not allowed under
the premises. The Casiño Group itself has abandoned this claim before this
Court so that the issue is not properly before this Court for its resolution.
Third, assuming that a collateral attack on the validity of DAO 2003-30 and the
Revised Manual can be allowed in this case, the rules on amendments appear to
be reasonable, absent a showing of grave abuse of discretion or patent illegality.
Essentially, the rules take into consideration the nature of the amendment in
determining the proper Environmental Impact Assessment (EIA) document type
that the project proponent will submit in support of its application for an
amendment to its previously issued ECC. A minor amendment will require a less
detailed EIA document type, like a Project Description Report (PDR),
while a major amendment will require a more detailed EIA document type, like an
Environmental Performance Report and Management Plan (EPRMP) or even an
EIS. 230
The rules appear to be based on the premise that it would be unduly
burdensome or impractical to require a project proponent to submit a detailed
EIA document type, like an EIS, for amendments that, upon preliminary
evaluation by the DENR, will not cause significant environmental impact. In
particular, as applied to the subject project, the DENR effectively determined that
it is impractical to require RP Energy to, in a manner of speaking, start from
scratch by submitting a new EIS in support of its application for the first
amendment to its previously issued ECC, considering that the existing EIS may
be supplemented by an EPRMP to adequately evaluate the environmental
impact of the proposed modifications under the first amendment. The same
reasoning may be applied to the PDR relative to the second amendment. cTCEIS

As previously discussed, the Casiño Group failed to prove that the EPRMP and
PDR were inadequate to assess the environmental impact of the planned
modifications under the first and second amendments, respectively. On the
contrary, the EPRMP and PDR appeared to contain the details of the planned
modifications and the corresponding adjustments to be made in the
environmental management plan or mitigating measures in order to address the
potential impacts of these planned modifications. Hence, absent sufficient proof,
there is no basis to conclude that the procedure adopted by the DENR was done
with grave abuse of discretion.
Justice Leonen's proposition would effectively impose a stringent requirement of
an EIS for each and every proposed amendment to an ECC, no matter how
minor the amendment may be. While this requirement would seem ideal, in order
to ensure that the environmental impact of the proposed amendment is fully
taken into consideration, the pertinent laws do not, however, expressly require
that such a procedure be followed. As already discussed, the DENR appear to
have reasonably issued DAO 2003-30 and the Revised Manual relative to the
amendment process of an ECC, by balancing practicality vis-à-vis the need for
sufficient information in determining the environmental impact of the proposed
amendment to an ECC. In fine, the Court cannot invalidate the rules which
appear to be reasonable, absent a showing of grave abuse of discretion or patent
illegality.
We next tackle Justice Leonen's argument that a petition for certiorari, and
not a writ of kalikasan, is the proper remedy to question adefect in an ECC.
In general, the proper procedure to question a defect in an ECC is to follow the
appeal process provided in DAO 2003-30 and the Revised Manual. After
complying with the proper administrative appeal process, recourse may be made
to the courts in accordance with the doctrine of exhaustion of administrative
remedies. However, as earlier discussed, in exceptional cases, a writ
of kalikasan may be availed of to challenge defects in the ECC provided that (1)
the defects are causally linked or reasonably connected to an environmental
damage of the nature and magnitude contemplated under the Rules on Writ
of Kalikasan, and (2) the case does not violate, or falls under an exception to, the
doctrine of exhaustion of administrative remedies and/or primary jurisdiction.
As previously discussed, in the case at bar, only the allegation with respect to the
lack of an EIA relative to the first and second amendments to the subject ECC
may be reasonably connected to such an environmental damage. Further, given
the extreme urgency of resolving the issue due to the looming power crisis, this
case may be considered as falling under an exception to the doctrine of
exhaustion of administrative remedies. Thus, the aforesaid issue may be
conceivably resolved in a writ of kalikasan case.
More importantly, we have expressly ruled that this case is an exceptional
case due to the looming power crisis, so that the rules of procedure may be
suspended in order to address issues which, ordinarily, the Court would not
consider proper in a writ of kalikasancase. Hence, all issues, including those not
proper in a writ of kalikasan case, were resolved here in order to forestall another
round of protracted litigation relative to the implementation of the subject project.
Conclusion
We now summarize our findings:
1. The appellate court correctly ruled that the Casiño Group failed to substantiate
its claims that the construction and operation of the power plant will cause
environmental damage of the magnitude contemplated under the writ
of kalikasan. On the other hand, RP Energy presented evidence to establish that
the subject project will not cause grave environmental damage, through its
Environmental Management Plan, which will ensure that the project will operate
within the limits of existing environmental laws and standards;
2. The appellate court erred when it invalidated the ECC on the ground of lack of
signature of Mr. Aboitiz in the ECC's Statement of Accountability relative to the
copy of the ECC submitted by RP Energy to the appellate court. While the
signature is necessary for the validity of the ECC, the particular circumstances of
this case show that the DENR and RP Energy were not properly apprised of the
issue of lack of signature in order for them to present controverting evidence and
arguments on this point, as the issue only arose during the course of the
proceedings upon clarificatory questions from the appellate court. Consequently,
RP Energy cannot be faulted for submitting the certified true copy of the ECC
only after it learned that the ECC had been invalidated on the ground of lack of
signature in the January 30, 2013 Decision of the appellate court. The certified
true copy of the ECC, bearing the signature of Mr. Aboitiz in the Statement of
Accountability portion, was issued by the DENR-EMB, and remains
uncontroverted. It showed that the Statement of Accountability was signed by Mr.
Aboitiz on December 24, 2008. Because the signing was done after the official
release of the ECC on December 22, 2008, we note that the DENR did not
strictly follow its rules, which require that the signing of the Statement of
Accountability should be done before the official release of the ECC. However,
considering that the issue was not adequately argued nor was evidence
presented before the appellate court on the circumstances at the time of signing,
there is insufficient basis to conclude that the procedure adopted by the DENR
was tainted with bad faith or inexcusable negligence. We remind the DENR,
however, to be more circumspect in following its rules. Thus, we rule that the
signature requirement was substantially complied withpro hac vice. DScTaC

3. The appellate court erred when it ruled that the first and second amendments
to the ECC were invalid for failure to comply witha new EIA and for violating DAO
2003-30 and the Revised Manual. It failed to properly consider the applicable
provisions in DAO 2003-30 and the Revised Manual for amendment to ECCs.
Our own examination of the provisions on amendments to ECCs in DAO 2003-30
and the Revised Manual, as well as the EPRMP and PDR themselves, shows
that the DENR reasonably exercised its discretion in requiring an EPRMP
and a PDR for the first and second amendments, respectively. Through these
documents, which the DENR reviewed, a new EIA was conducted relative to the
proposed project modifications. Hence, absent sufficient showing of grave abuse
of discretion or patent illegality, relative to both the procedure and substance of
the amendment process, we uphold the validity of these amendments;
4. The appellate court erred when it invalidated the ECC for failure to comply with
Section 59 of the IPRA Law. The ECC is not the license or permit contemplated
under Section 59 of the IPRA Law and its implementing rules. Hence, there
is no necessity to secure the CNO under Section 59 before an ECC may be
issued, and the issuance of the subject ECC without first securing the aforesaid
certification does not render it invalid;
5. The appellate court erred when it invalidated the LDA between SBMA and RP
Energy for failure to comply with Section 59 of the IPRA Law. While we find
that a CNO should have been secured prior to the consummation of the LDA
between SBMA and RP Energy, considering that this is the first time we lay down
the rule of action appropriate to the application of Section 59, we refrain from
invalidating the LDA for reasons of equity;
6. The appellate court erred when it ruled that compliance with Section 27, in
relation to Section 26, of the LGC (i.e., approval of the
concerned sanggunian requirement) is necessary prior to issuance of the subject
ECC. The issuance of an ECC does not, by itself, result in the implementation of
the project. Hence, there is no necessity to secure prior compliance with the
approval of the concernedsanggunian requirement, and the issuance of the
subject ECC without first complying with the aforesaid requirement does not
render it invalid. The appellate court also erred when it ruled that compliance with
the aforesaid requirement is necessary prior to the consummation of the LDA. By
virtue of the clear provisions of RA 7227, the project is not subject to the
aforesaid requirement and the SBMA's decision to approve the project prevails
over the apparent objections of the concerned sanggunians. Thus, the LDA
entered into between SBMA and RP Energy suffers from no infirmity despite the
lack of approval of the concerned sanggunians; and
7. The appellate court correctly ruled that the issue as to the validity of the third
amendment to the ECC cannot be resolved in this case because it was not one
of the issues set during the preliminary conference, and would, thus, violate RP
Energy's right to due process.
WHEREFORE, the Court resolves to:
1. DENY the Petition in G.R. No. 207282; and
2. GRANT the Petitions in G.R. Nos. 207257, 207366 and 207276:
2.1. The January 30, 2013 Decision and May 22, 2013 Resolution
of the Court of Appeals in CA-G.R. SP No. 00015 are
reversed and set aside;
2.2. The Petition for Writ of Kalikasan, docketed as CA-
G.R. SP No. 00015, is denied for insufficiency of
evidence;
2.3. The validity of the December 22, 2008 Environmental
Compliance Certificate, as well as the July 8, 2010 first
amendment and the May 26, 2011 second amendment
thereto, issued by the Department of Environment and
Natural Resources in favor of Redondo Peninsula Energy,
Inc., are upheld; and
 2.4. The validity of the June 8, 2010 Lease and Development
Agreement between Subic Bay Metropolitan Authority and
Redondo Peninsula Energy, Inc. is upheld.
SO ORDERED.
(Paje v. Casiño, G.R. Nos. 207257, 207276, 207282 & 207366, [February 3,
|||

2015])
 [G.R. No. 209165. April 12, 2016.]

LNL ARCHIPELAGO MINERALS, INC., petitioner, vs. AGHAM P

ARTY LIST (represented by its President Rep. Angelo B.
Palmones), respondent.

DECISION

CARPIO, J : p

The Case
This is a petition for review on certiorari 1 assailing the Amended
Decision dated 13 September 2013 2 of the Court of Appeals in CA-
G.R. SP No. 00012.
The Facts
Petitioner LNL Archipelago Minerals, Inc. (LAMI) is the operator of a
mining claim located in Sta. Cruz, Zambales. LAMI's mining area is covered
by Mineral Production Sharing Agreement 3 No. 268-2008-III dated 26 August 2008 by
virtue of an Operating Agreement 4 dated 5 June 2007 with Filipinas Mining
Corporation.
LAMI embarked on a project to build a private, non-commercial port in
Brgy. Bolitoc, Sta. Cruz, Zambales. A port is a vital infrastructure to the
operations of a mining company to ship out ores and other minerals extracted
from the mines and make the venture economically feasible. Brgy. Bolitoc,
about 25 kilometers away from the mine site, makes it an ideal location to
build a port facility. In the area of Sta. Cruz, Shangfil Mining and Trading
Corporation (Shangfil)/A3Una Mining Corporation (A3Una) and DMCI Mining
Corporation, have been operating their own ports since 2007.
LAMI secured the following permits and compliance certificates for the
port project: (1) Department of Environment and Natural Resources (DENR)
Environmental Compliance Certificate 5 (ECC) R03-1104-182 dated 2 May
2011 covering the development of causeway, stockpile and related facilities
on LAMI's property with an area of 18,142 sq.m.; (2) DENR provisional
foreshore lease agreement with LAMI; 6 (3) Philippine Ports Authority (PPA)
Clearance to Develop a Port; 7 (4) PPA Permit to Construct a Port; 8 (5) PPA
Special Permit to Operate a Beaching Facility; 9 and (6) Tree Cutting
Permit/Certification 10 from the Community Environment and Natural
Resources Office (CENRO) of the DENR.
 The Zambales Alliance, a group of other mining companies operating in
Sta. Cruz, Zambales which do not have their own port, namely
Eramen Minerals, Inc.; Zambales Diversified Metals Corporation; Zambales
Chromite Mining Corporation, Inc.; BenguetCorp Nickel Mines, Inc., supported
the port project of LAMI and issued Letters 11 of Intent to use the port facilities
of LAMI upon completion. DETACa

The Bolitoc community — the barangay, its officials and residents —

gave several endorsements 12 supporting the project. Even the Sangguniang
Bayan of Sta. Cruz gave its consent to the construction of the port. 13
However, LAMI allegedly encountered problems from the local
government of Sta. Cruz, headed by Mayor Luisito E. Marty (Mayor Marty).
LAMI stated that Mayor Marty unduly favored some mining companies in the
municipality and allegedly refused to issue business and mayor's permits and
to receive payment of occupation fees from other mining companies despite
the necessary national permits and licenses secured by the other mining
companies.
On 24 April 2012, Mayor Marty issued an order 14 directing LAMI to
refrain from continuing with its clearing works and directed the Sta. Cruz
Municipal Police Chief Generico Biñan to implement his order. On 26 April
2012, LAMI responded through a letter 15 explaining that Mayor Marty's order
was illegal and baseless. Chief Biñan, together with two of his deputies, went
to LAMI's port site to demand that LAMI cease its clearing works. LAMI's
supervisor showed Chief Biñan all of LAMI's permits. In a Memorandum
dated 3 May 2012, Chief Biñan made a report to his supervisor, S/Supt.
Francisco DB Santiago, Jr. (S/Supt. Santiago), Zambales Police Provincial
Director, that there was no leveling of a mountain on the port site. On 6 May
2012, S/Supt. Santiago made a Special Report re: Police Assistance 16 to the
Philippine National Police (PNP) Regional Director citing the findings of Chief
Biñan.
Thereafter, Rep. Dan Fernandez, a member of the Committee on
Ecology of the House of Representatives, passed House Resolution No. 117
(HR 117) entitled "Resolution Directing the Committee on Ecology to Conduct
an Inquiry, in Aid of Legislation, on the Implementation of Republic Act No.
7942, Otherwise Known as the Philippine Mining Act of 1995, Particularly on
the Adverse Effects of Mining on the Environment." HR 117 was issued in
order to conduct an alleged ocular inspection of the port site in aid of
legislation. On 21 May 2012, the Committee on Ecology conducted an ocular
inspection of the LAMI port site, as well as the other ports adjacent to LAMI's
— those of Shangfil/A3Una and D.M. Consunji, Inc. The Committee allegedly
never visited any mining site in the area of Sta. Cruz.
 Meanwhile, on 30 April 2012, the DENR Environmental Management
Bureau in Region III (DENR-EMB R3) received a letter dated 27 April 2012
from Mayor Marty inquiring if the ECC the DENR issued in favor of LAMI
allowed LAMI to cut trees and level a mountain.
On 25 May 2012, representatives from the DENR Provincial
Environment and Natural Resources Office (PENRO) in Zambales and the
local government of Sta. Cruz conducted an ECC compliance monitoring of
LAMI's property. The DENR PENRO team found that LAMI violated some of
its conditions under the ECC. Accordingly, a Notice of Violation (NOV) dated 1
June 2012 was issued against LAMI for violation of certain conditions of the
ECC with a cease and desist order from further constructing and developing
until such time that the ECC conditions were fully complied.
On 8 June 2012, a technical conference was held where LAMI
presented its reply to the NOV. The DENR-EMB R3 ascertained that LAMI's
violations of the four conditions of its ECC constitute minor violations since
they only pertain to non-submission of documents. However, the leveling of
the elevated portion of the area was a major violation. A penalty was
consequently imposed on LAMI, and the DENR-EMB R3 directed LAMI to (1)
immediately cause the installation of mitigating measures to prevent soil
erosion and siltation of the waterbody, and (2) submit a rehabilitation plan.
On 11 June 2012, LAMI wrote a letter 17 to the DENR-EMB
R3 regarding the commitments agreed upon during the technical conference.
LAMI signified compliance with the conditions of DENR-EMB R3. Attached to
the letter were: (1) Official Receipt of payment of penalties under Presidential
Decree (PD) No. 1586, (2) Matrix of Mitigation and Rehabilitation Plan, (3)
Designation of Pollution Control Officer dated 6 May 2011, and (4) Tree
Cutting Permit dated 17 April 2012 issued by DENR R3 CENRO. 18
On 20-21 June 2012, the DENR composite team, composed of DENR-
EMB R3, Mines and Geosciences Bureau (MGB) R3 and PENRO Zambales,
conducted an investigation to determine whether mitigating measures done by
LAMI were sufficient. The composite team found that LAMI's activities in its
property would not result to any environmental damage to its surrounding
communities.
Thereafter, the DENR-EMB R3 lifted the cease and desist order after
LAMI was found to have complied with the requirements. In a Letter 19 dated
24 October 2012, Lormelyn E. Claudio (Dir. Claudio), the Regional Director of
DENR-EMB R3 wrote:
xxx xxx xxx
The violated ECC conditions have been rectified and clarified while the
penalty corresponding to such violation was fully paid and the required
 rehabilitation and mitigating measures were already implemented as
committed. As such, the matter leading to the issuance of the NOV is
now resolved.
As ECC holder, you are enjoined to ensure the effective carrying out of
your Environmental Management and Monitoring Plan. 20 aDSIHc

Meanwhile, earlier, or on 6 June 2012,

respondent Agham Party List (Agham), through its President, former
Representative Angelo B. Palmones (Rep. Palmones), filed a Petition 21 for
the issuance of a Writ 22 of Kalikasan against LAMI, DENR, PPA, and the
Zambales Police Provincial Office (ZPPO).
Agham alleged that LAMI violated: (1) Section 68 23 of PD No.
705, 24 as amended by Executive Order No. 277, 25 or the Revised Forestry
Code; and (2) Sections 57 26 and 69 27 of Republic Act No. 7942, 28 or
the Philippine Mining Act of 1995 (Philippine Mining Act). Agham added that
LAMI cut mountain trees and flattened a mountain which serves as a natural
protective barrier from typhoons and floods not only of the residents of
Zambales but also the residents of some nearby towns located in
Pangasinan.
On 13 June 2012, this Court remanded the petition 29 to the Court of
Appeals for hearing, reception of evidence and rendition of judgment.
On 25 June 2012, LAMI filed its Verified Return dated 21 June 2012,
controverting Agham's allegations. LAMI stated that it did not and was not
violating any environmental law, rule or regulation. LAMI argued that: (1) LAMI
had the necessary permits and authorization to cut trees in the port site; (2)
LAMI had the necessary permits to construct its port; (3) LAMI consulted with
and obtained the support of the Sangguniang Barangay and residents of
Barangay Bolitoc; (4) LAMI's port site is located on private and alienable land;
(5) there is no mountain on the port site; (6) the Philippine Mining Act is
irrelevant and inapplicable to the present case; and (7) the other allegations
of Agham that LAMI violated environmental laws, rules or regulations are
likewise baseless, irrelevant and false. LAMI stated further that there
is no environmental damage of such magnitude as to prejudice the life, health,
or property of inhabitants in two or more cities and provinces.
Public respondents DENR, PPA and ZPPO, filed with the Court of
Appeals their Pre-Trial Brief dated 1 August 2012. In the Pre-Trial Brief, public
respondents stated that they will present the following witnesses: (1) Dir.
Claudio, Regional Director, DENR-EMB R3; two from the PPA — (2) Engineer
Marieta G. Odicta (Engr. Odicta), Division Manager, Engineering Services
Division, Port District Office, Manila, Northern Luzon; and (3) Emma L. Susara
(Ms. Susara), Department Manager, Commercial Services of the PPA (NCR);
and (4) S/Supt. Santiago, Provincial Director of the ZPPO.
 The witnesses of public respondents submitted their Judicial Affidavits
dated 6 August 2012. The testimonies of the witnesses were offered to prove
the facts and allegations in the petition:
(1) Dir. Claudio 30 —
a) That the issues presented by Agham were already subject of
the complaint filed by Mayor Marty with the DENR-EMB
R3;
b) That the DENR-EMB R3 issued an ECC to LAMI;
c) That the DENR-EMB R3 acted on the complaint of Mayor
Marty with regard to construction by LAMI of its port facility;
d) That the DENR-EMB R3 issued a NOV dated 1 June 2012 to
LAMI;
e) That the DENR-CENRO issued a tree cutting permit to LAMI;
f) That there is no mountain within or inside the property of LAMI
in Brgy. Bolitoc, Sta. Cruz, Zambales;
g) That the cutting of the trees and the partial leveling of a
landform (which is determined to be an "elongated mound"
but is alleged to be a "mountain" by the petitioner)
conducted by LAMI in its property in Brgy. Bolitoc, Sta.
Cruz, Zambales do not pose adverse environmental impact
on the adjoining communities more so to the larger areas
or the entire provinces of Zambales and Pangasinan.
(2) Eng. Odicta 31 —
a) That the PPA issued a permit to construct to LAMI only after
due application and submission of the required documents;
b) That other private companies, namely: DMCI Mining
Corporation and Shangfil/A3Una constructed port facilities
along the Brgy. Bolitoc coastline and contiguous to where
the port facility of LAMI is located.
(3) Ms. Susara 32 —
a) That the PPA issued a clearance to develop and a permit to
operate to LAMI only after due application and submission
of the required documents;
b) That other private port facilities, namely: DMCI Mining
Corporation, Shangfil/A3Una are operating along the Brgy.
Bolitoc coastline and contiguous to where the port facility of
LAMI is located; and
 c) That since the 1970's, the coastline along Brgy. Bolitoc,
Municipality of Sta. Cruz, Zambales, has been the location
of port facilities necessary for mining operations in the
province of Zambales.
(4) S/Supt. Santiago 33 —
a) That the members and officials of the ZPPO did not violate, or
threaten with violation, petitioner's right to a balanced and
healthful ecology; ETHIDa

b) That the members and officials of the ZPPO did not cover-up
any alleged illegal activity of LAMI; and
c) The contents of the Memorandum (Special Report re: Police
Assistance) dated 6 May 2012 submitted by S/Supt.
Santiago to the PNP Regional Director.
On 10 September 2012, Agham presented its first and only witness,
former Rep. Angelo B. Palmones. Rep. Palmones was cross-examined by
counsel for LAMI and counsel for public respondents DENR, PPA, and
ZPPO. 34
On 26 September 2012, public respondents presented their
witnesses. 35
On 28 September 2012, LAMI manifested that it was adopting the
testimonies of the witnesses of the public respondents. On the same hearing,
LAMI presented its witness, Felipe E. Floria, LAMI's Vice-President and
General Manager. 36
In a Decision 37 dated 23 November 2012, the Court of Appeals decided
the case in favor of petitioner. The appellate court found that the government,
through the CENRO, authorized LAMI to cut trees and LAMI strictly followed
the proper guidelines stated in the permit. The appellate court also stated that
there can be no flattening of a mountain when there is no mountain to speak
of. Thus, for failing to comply with the requisites necessary for the issuance of
a Writ of Kalikasan, the Court of Appeals resolved to deny the petition. The
dispositive portion of the Decision states:
WHEREFORE, premises considered, the petition is hereby
DENIED.
SO ORDERED. 38
Agham filed a Motion for Reconsideration with the Court of Appeals. In
its Motion for Reconsideration, Agham argued that the alleged leveling of the
subject hill by LAMI: (1) was not sanctioned by the DENR since LAMI
allegedly had no ECC from the DENR; (2) affected the ecological balance of
the affected towns and provinces since such leveling was done without the
concurrence of its residents; and (3) instigated the gradual eradication of the
strip of land mass in Sta. Cruz, Zambales that serves as protective barrier
from floods brought about by the swelling or surging of the coastal water
moving inward reaching other towns of Zambales and Pangasinan. 39
On 4 February 2013, LAMI filed its Comment/Opposition to the Motion
for Reconsideration. Agham then filed its Reply dated 21 February 2013.
In a Resolution dated 6 March 2013, the Court of Appeals declared
that Agham's Motion for Reconsideration was submitted for resolution.
Subsequently, Agham filed a Supplemental Reply dated 29 April 2013
reiterating the same arguments.
In a Resolution 40 dated 31 May 2013, the Court of Appeals
set Agham's Motion for Reconsideration for hearing on 13 June 2013. At the
hearing, all parties were given time to argue their case. Thereafter, the Motion
for Reconsideration was submitted for resolution.
Agham then filed a Manifestation dated 17 June 2013 summarizing its
arguments. On 4 July 2013, LAMI filed a Motion to Expunge with Ad
Cautelam Comment/Opposition. On 11 July 2013, the Court of Appeals, for
the last and third time, submitted the Motion for Reconsideration for
resolution.
In an Amended Decision dated 13 September 2013, the Court of
Appeals reversed and set aside its original Decision dated 23 November
2012. The dispositive portion of the Decision states:
WHEREFORE, in view of the foregoing, the Decision dated
November 23, 2012 is hereby RECONSIDERED and SET ASIDE and,
in lieu thereof, another judgment is rendered GRANTING the petition
for WRIT OF KALIKASAN as follows, to wit:
(1) respondent LNL Archipelago Minerals, Inc. (LAMI) is
directed to PERMANENTLY CEASE and [DESIST] from scraping off
the land formation in question or from performing any activity/ies in
violation of environmental laws resulting in environmental destruction
or damage;
(2) the respondent LAMI as well as the Secretary of Department
of Environment and Natural Resources and/or their representatives are
directed to PROTECT, PRESERVE, REHABILITATE and/or
RESTORE the subject land formation including the plants and trees
therein;
(3) the Secretary of DENR and/or his representative is directed
to MONITOR strict compliance with the Decision and Orders of the
Court; and make PERIODIC REPORTS on a monthly basis on the
execution of the final judgment.
 SO ORDERED. 41
Hence, the instant petition.
The Issues
The issues for our resolution are (1) whether LAMI violated the
environmental laws as alleged by Agham, and (2) whether LAMI flattened any
mountain and caused environmental damage of such magnitude as to
prejudice the life, health or property of inhabitants in two or more cities or
provinces.
The Court's Ruling
Petitioner contends that it has the necessary permits and authorization
to cut trees on the port site, controverting the allegation of Agham that it
violated Section 68 of the Revised Forestry Code, as amended. Petitioner
also insists that it did not violate nor is it violating the Mining Act as alleged
by Agham. Petitioner argues that it is not conducting any mining activity on
the port site since the mine site is about 25 kilometers away from the port site.
Further, petitioner adds that after filing its Verified Return dated 21 June
2012, Agham never mentioned again the alleged violation of the Revised
Forestry Code, as amended, and thePhilippine Mining Act.
Instead, Agham changed its position and later claimed that LAMI was
flattening a mountain on the port site which was allegedly illegal per se.
Petitioner insists that Agham did not even present evidence to establish any
environmental damage which is required for the issuance of the privilege of
the Writ of Kalikasan. cSEDTC

Respondents, on the other hand, assert that even if the subject land
formation is not a mound, hill or mountain, the fact remains that the scraping
and leveling done by petitioner caused serious environmental damage which
affects not only the municipality of Sta. Cruz, Zambales but also the nearby
towns of Zambales and Pangasinan.
The present case involves the extraordinary remedy of a Writ of
Kalikasan which is under the Rules of Procedure for Environmental
Cases. 42 Section 1, Rule 7, Part III of the said Rules provides:
Section 1. Nature of the writ. — The writ is a remedy available
to a natural or juridical person, entity authorized by law, people's
organization, non-governmental organization, or any public interest
group accredited by or registered with any government agency, on
behalf of persons whose constitutional right to a balanced and healthful
ecology is violated, or threatened with violation by an unlawful act or
omission of a public official or employee, or private individual or entity,
involving environmental damage of such magnitude as to prejudice the
life, health or property of inhabitants in two or more cities or provinces.
 The Writ of Kalikasan, categorized as a special civil action and
conceptualized as an extraordinary remedy, 43 covers environmental damage
of such magnitude that will prejudice the life, health or property of inhabitants
in two or more cities or provinces. The writ is available against an unlawful act
or omission of a public official or employee, or private individual or entity.
The following requisites must be present to avail of this remedy: (1)
there is an actual or threatened violation of the constitutional right to a
balanced and healthful ecology; (2) the actual or threatened violation arises
from an unlawful act or omission of a public official or employee, or private
individual or entity; and (3) the actual or threatened violation involves or will
lead to an environmental damage of such magnitude as to prejudice the life,
health or property of inhabitants in two or more cities or provinces.
In the present case, Agham, in its Petition for a Writ of Kalikasan, cited
two laws which LAMI allegedly violated: (1) Section 68 of the Revised
Forestry Code, as amended; and (2) Sections 57 and 69 of the Philippine
Mining Act.
Section 68 of the Revised Forestry Code, as amended, states:
Sec. 68. Cutting, Gathering and/or Collecting Timber, or Other
Forest Products Without License. — Any person who shall cut, gather,
collect, remove timber or other forest products from any forest land, or
timber from alienable or disposable public land, or from private land,
without any authority, or possess timber or other forest products
without the legal documents as required under existing forest laws and
regulations, shall be punished with the penalties imposed under
Articles 309 and 310 of the Revised Penal Code: Provided, That in the
case of partnerships, associations, or corporations, the officers who
ordered the cutting, gathering, collection or possession shall be liable,
and if such officers are aliens, they shall, in addition to the penalty, be
deported without further proceedings on the part of the Commission on
Immigration and Deportation.
xxx xxx xxx
There are two distinct and separate offenses punished under Section
68 of PD 705:
(1) Cutting, gathering, collecting and removing timber or other forest
products from any forest land, or timber from alienable or disposable public
land, or from private land without any authorization; and
(2) Possession of timber or other forest products without the legal
documents required under existing forest laws and regulations. 44
In the present case, LAMI was given a Tree Cutting Permit 45 by the
CENRO dated 17 April 2012. In the permit, LAMI was allowed to cut 37 trees
with a total volume of 7.64 cubic meters within the port site, subject to the
condition that the trees cut shall be replaced with a ratio of 1-30 fruit and non-
bearing fruit trees. Thereafter, the Forest Management Service and Forest
Utilization Unit, both under the DENR, issued a Post Evaluation
Report 46 dated 3 May 2012 stating that LAMI properly followed the conditions
laid down in the permit. The relevant portions of the Post Evaluation Report
state:
. . . the following findings and observations are noted:
1. That the tree cutting implemented/conducted by the
company was confined inside Lot No. 2999, Cad 316-D
situated at Barangay Bolitoc, Sta. Cruz, Zambales and
within the area previously granted for tree cutting;
2. It was found that the thirty seven (37) trees of various
lesser-known species and fruit bearing trees with a total
volume of 7.64 cubic meters as specified in the permit
were cut as subject trees are located within the directly
affected areas of the port facility project of the
company; SDAaTC

3. The other trees previously inventoried and are not

directly affected by the project within the same lot are
spared; and
4. There are forty four (44) various species of
miscellaneous trees counted and left with a computed
volume of 6.04 cubic meters.
Relative the above findings and in compliance with the terms
and conditions of the permit issued, the company should be reminded
to replace the trees cut therein as specified in support with the
environmental enhancement program of the DENR.
xxx xxx xxx
Since LAMI strictly followed the permit issued by the CENRO and even
passed the evaluation conducted after the issuance of the permit, then clearly
LAMI had the authority to cut trees and did not violate Section 68 of
the Revised Forestry Code, as amended.
Next, Agham submitted that LAMI allegedly violated Sections 57 and 69
of the Philippine Mining Act.
Sections 57 and 69 of the Philippine Mining Act state:
Section 57. Expenditure for Community Development and
Science and Mining Technology. — A contractor shall assist in the
development of its mining community, the promotion of the general
welfare of its inhabitants, and the development of science and mining
technology.
 Section 69. Environmental Protection. — Every contractor shall
undertake an environmental protection and enhancement program
covering the period of the mineral agreement or permit. Such
environmental program shall beincorporated in the work program
which the contractor or permittee shall submit as an accompanying
document to the application for a mineral agreement or permit. The
work program shall include not only plans relative to mining operations
but also to rehabilitation, regeneration, revegetation and reforestation
of mineralized areas, slope stabilization of mined-out and tailings
covered areas, aquaculture, watershed development and water
conservation; and socioeconomic development.
These two provisions are inapplicable to this case. First, LAMI is not
conducting any mining activity on the port site. LAMI's mine site is about 25
kilometers away from the port site. Second, LAMI secured all the necessary
permits and licenses for the construction of a port and LAMI's activity was
limited to preparatory works for the port's construction. The Philippine Mining
Actdeals with mining operations and other mining activities. Sections 57 and
69 deal with the development of a mining community and environmental
protection covering a mineral agreement or permit.
Here, Agham reasoned that LAMI was destroying the environment by
cutting mountain trees and leveling a mountain to the damage and detriment
of the residents of Zambales and the nearby towns of
Pangasinan. Agham simply submitted a picture taken on 4 June 2012 where
allegedly the backhoes owned by LAMI were pushing the remnants of the
mountain to the sea.
This explanation, absent any concrete proof, is untenable.
Clearly, Agham did not give proper justifications for citing Sections 57
and 69 of the Philippine Mining Act. Agham did not even present any
evidence that LAMI violated the mining law or any mining undertakings in
relation to LAMI's construction of a port facility. Agham only alleged in very
general terms that LAMI was destroying the environment and leveling a
mountain without conducting any scientific studies or submitting expert
testimonies that would corroborate such allegations.
Section 2 (c), Rule 7, Part III of the Rules of Procedure for
Environmental Cases provides:
Section 2. Contents of the petition. — The verified petition shall contain
the following:
(c) The environmental law, rule or regulation violated or
threatened to be violated, the act or omission complained
of, and the environmental damage of such magnitude as
 to prejudice the life, health or property of inhabitants in
two or more cities or provinces.
The Rules are clear that in a Writ of Kalikasan petitioner has the burden
to prove the (1) environmental law, rule or regulation violated or threatened to
be violated; (2) act or omission complained of; and (3) the environmental
damage of such magnitude as to prejudice the life, health or property of
inhabitants in two or more cities or provinces.
Even the Annotation to the Rules of Procedure for Environmental
Cases states that the magnitude of environmental damage is a condition sine
qua non in a petition for the issuance of a Writ of Kalikasan and must be
contained in the verified petition.
Agham, in failing to prove any violation of the Revised Forestry Code,
as amended, and the Philippine Mining Act, shifted its focus and then claimed
that LAMI allegedly flattened or leveled a mountain.
The mountain, according to Agham, serves as a natural protective
barrier from typhoons and floods to the residents of Zambales and nearby
towns of Pangasinan. Thus, Agham argues that once such natural resources
are damaged, the residents of these two provinces will be defenseless and
their life, health and properties will be at constant risk of being lost. acEHCD

However, Agham, in accusing that LAMI allegedly flattened a mountain,

did not cite any law allegedly violated by LAMI in relation to this
claim. Agham did not present any proof to demonstrate that the local
residents in Zambales, and even the nearby towns of Pangasinan,
complained of any great danger or harm on the alleged leveling of the land
formation which may affect their lives, health or properties. Neither was there
any evidence showing of a grave and real environmental damage to
the barangay and the surrounding vicinity.
To belie Agham's contentions, the records, from the testimonies of
those experts in their fields, show that there is in fact nomountain in Brgy.
Bolitoc, Sta. Cruz, Zambales.
First, in the Judicial Affidavit 47 dated 6 August 2012, the Regional
Director of DENR EMB R3, Dir. Claudio, categorically declared that there
is no mountain on LAMI's property. The relevant portions state:
32. Q: One of the complaints of Mayor Marty in his letter dated 27 April
2012, . . ., is that LAMI is "leveling a mountain" in its property in
Barangay Bolitoc, Sta. Cruz, Zambales. Is there really a mountain
in the property of LAMI in the said place?
A: None, sir. The subject landform is not considered as a mountain
based on commonly accepted description of a mountain as
 having 300 meters to 2,500 meters height over base. The highest
elevation of the project area is 23 meters.
33. Q: Do you have any proof that the landform in LAMI's property is not
a mountain?
A: Yes, sir. The Mines and Geosciences Bureau (MGB), Regional
Office No. III, through the OIC of the Geosciences Division,
issued a Memorandum dated June 26, 2012 proving that there
is no mountain in LAMI's property. The proper description of the
landform, according to the said memorandum, is an "elongated
mound". 48
Second, LAMI, through the Judicial Affidavit 49 dated 3 August 2012 of
Felipe E. Floria, LAMI's Vice-President and General Manager, was able to
establish that Brgy. Bolitoc, Sta. Cruz had no mountain. The relevant portions
provide:
126. Q: Why do you say that this elevated portion is not a "mountain"?
A: The port site where the alleged mountain is located is only 1.8
hectares of alienable and disposable land. It is private property,
lawfully possessed by LAMI, with the latter exercising rights
based on its occupation thereof. The mound and/or ridge within
the private property is only about 23 meters high. The base or
footing of the mound therein which the Petitioner insists is a
mountain is only 1.5 hectares, and the height is approximately 23
meters. I have been advised that a mountain, as described by the
United Nations Environment Programme — World Conservation
Monitoring Centre ("UNEP-WCMC"), must be, at least, of a height
greater than 300 meters or 984 feet in addition to other
requirements on slope and local elevation range. In other
countries, the United Kingdom for example, the minimum height
requirement is 2,000 ft or 609.6 meters. 50
Third, several government entities and officials have declared that there
is no mountain on the port site: (1) in a Letter 51 to LAMI signed by
the Sangguniang Bayan members of Sta. Cruz dated 4 June 2012,
the Sangguniang Bayan members stated that there is no mountain in the
area; (2) in a Memorandum 52 dated 4 June 2012, the CENRO concluded that
the "mountain" is a "hill falling under Block I, Alienable and Disposable land
per LC Map 635"; and (3) in a Special Report 53 re: Police Assistance dated 6
May 2012, the Provincial Director of PNP Zambales reported to the PNP
Regional Director, citing the findings of the local chief of police,
that no leveling of a mountain transpired in the area.
Last, in an Inspection Report 54 dated 26 June 2012, the Mines and
Geosciences Bureau, Geosciences Division of the DENR concluded that the
"mountain" is only an elongated mound. The findings and conclusion of the
report provide:
FINDINGS
1. The Bolitoc LAMI Port Facility is approximately centered at the
intersection of geographic coordinates 15º45'00.4" north latitude and
119º53'19.9" east longitude, . . . . It is bounded on the north by the
West Philippine Sea (Bolitoc Bay), on the west and east by the
continuation of the elevated landform, and to the south by an unnamed
creek and a concrete barangay road connecting the Brgy. Bolitoc to
the Zambales National Highway.
Brgy. Bolitoc also hosts the port facilities of the DMCI and the Shangfil
Corporation both of which occupy the former loading site of the defunct
Acoje Mining Corporation.
2. The landform of interest is characterized by a roughly east-west
trending elevated and elongated landmass. Within the LAMI site, the
elevated landform measures 164 meters in length and about 94 meters
in width and is almost parallel to the coastline. It has a maximum
elevation located at its eastern end of 26 meters above mean sea level
more or less. Its western end has an elevation of 23 meters above
mean sea level more or less . . . . The landform is about 16 meters
higher than the barangay road and nearby houses . . . .
From the LAMI area, the landform continues eastwards to the DMCI
and the Shangfil Port facilities and also westwards to the vicinity of
Brgy. Bolitoc proper.
3. The area is underlain by interbedded calcareous sandstone, shale,
and siltstone of the Cabaluan Formation (formerly Zambales
Formation), . . . . Rock outcrops show the sedimentary sequence
displaying almost horizontal to gently dipping beds cut by a minor fault.
These rocks weather into a 1-2 meter silty clay. SDHTEC

DISCUSSION
Considering elevated landform of interest measures 164 meters in
length and about 94 meters in width disposed in an elongate manner
with a maximum elevation of 26 meters more or less above mean sea
level and is about 16 meters higher than the barangay road and nearby
houses and using the Glossary of Landforms and Geologic Terms . . .
by Hawley and Parsons, 1980 above that the elevated landform is
neither a mountain or hill, but instead it is considered elongated
landmass/or elongated mound.
CONCLUSION
Based on the above geological and landform (geomorphic)
classification, considering its elevation of 23 to 26 meters above
mean sea level and which is 16 meters above the barangay road
 and vicinity, the elevated landform present in the LAMI port
facility is neither a hill or mountain. Its elevation of 16 meters
above its vicinity is lower than a hill (30 meters). Its height above
its vicinity can be possibly categorized as a mound which is
defined by the Dictionary of Geological terms (1976) prepared by the
American Geological Institute as which defines a mound as "a low hill
of earth, natural or artificial." In the United Kingdom, mounds are also
called hillocks or knolls. The term elongated is prefixed as a modifier to
describe its east-west disposition. Hence, the elevated landform of
interest is considered as elongated mound. 55 (Emphasis supplied)
On the other hand, the lone witness of Agham, former Rep. Palmones,
admitted in the 10 September 2012 hearing conducted by the Court of
Appeals that he was incompetent to prove that the elevated ground located in
Brgy. Bolitoc is a mountain. The relevant portions 56 of Rep. Palmones'
testimony provide:
Atty. Gallos:
Mr. Congressman, you conducted an ocular inspection in Brgy. Bolitoc
in Sta. Cruz, Zambales on May 21?
Cong. Palmones:
Yes.
xxx xxx xxx
Atty. Gallos:
That was the first time you were in Brgy. Bolitoc?
Cong. Palmones:
Yes.
Atty. Gallos:
That was also the first and the last ocular inspection that you did so far
in Brgy. Bolitoc?
Cong. Palmones:
Yes.
xxx xxx xxx
Atty. Gallos:
What is the name of this mountain?
Cong. Palmones:
I really don't know the name of the mountain, Your Honor.
Atty. Gallos:
What is the elevation or height of this mountain?
 Cong. Palmones:
I really don't know the elevation of that mountain, Your Honors.
Atty. Gallos:
What is the base of this mountain?
Cong. Palmones:
I really don't know, Your Honors.
Atty. Tolentino:
Your Honor, the witness is incompetent to answer the questions.
Cong. Palmones:
I'm not competent to answer that question.
Atty. Gallos:
Your Honor, that's exactly our point. He is claiming that there is a
mountain but he cannot tell us the height, the slope, the
elevation, the base, Your Honor. So you admit now that you
do not know, you do not have the competence to state
whether or not there is a mountain?
Cong. Palmones:
I really don't know what is the technical description of a mountain
but based on the information that we got from the community
during the consultation it's full of vegetation before it was
leveled down by the operation, Your Honors.(Emphasis
supplied)
Agham, in its Motion for Reconsideration with the Court of Appeals,
then asserted that even if the subject land formation is not a mound, hill or
mountain, the fact remains that the scraping and leveling done by petitioner
caused serious environmental damage which affects not only Sta. Cruz,
Zambales but also the nearby towns of Zambales and Pangasinan. AScHCD

The Court of Appeals, in granting the Motion for Reconsideration

embodied in its Amended Decision dated 13 September 2013, held that what
LAMI did was not to simply level the subject land formation but scrape and
remove a small mountain and, thereafter, reclaim a portion of the adjacent
waters with the earth it took therefrom, making out of the soil gathered to
construct a seaport. The Court of Appeals stated that the scraping off or the
cutting of the subject land formation by LAMI would instigate the gradual
eradication of the strip of land mass in Brgy. Bolitoc which serves as
protective barrier to floods brought about by the swelling or surging of the
coastal water moving inward reaching other towns of Zambales and
Pangasinan. The Court of Appeals added that the port site is prone to
frequent visits of tropical depression and that the coastal portions of the "Sta.
Cruz Quadrangle — Zambales and Pangasinan province" are touted to be
highly susceptible to landslide and flooding.
We do not subscribe to the appellate court's view.
First, the Court of Appeals did not provide any basis, in fact and in law,
to support the reversal of its original decision. Agham, in its Motion for
Reconsideration, did not present new evidence to refute its claim that LAMI
leveled a "mountain" or that there was an environmental damage of
considerable significance that will harm the life, health and properties of the
residents of the municipality of Sta. Cruz and its neighboring towns or cities,
or even the provinces of Zambales and Pangasinan. The pleadings and
documents submitted by Agham were just a reiteration of its original position
before the original Court of Appeals' decision was promulgated on 23
November 2012.
It is well-settled that a party claiming the privilege for the issuance of a
Writ of Kalikasan has to show that a law, rule or regulation was violated or
would be violated. In the present case, the allegation by Agham that two laws
— the Revised Forestry Code, as amended, and the Philippine Mining Act —
were violated by LAMI was not adequately substantiated by Agham. Even the
facts submitted by Agham to establish environmental damage were mere
general allegations.
Second, Agham's allegation that there was a "mountain" in LAMI's port
site was earlier established as false as the "mountain" was non-existent as
proven by the testimonies of the witnesses and reports made by
environmental experts and persons who have been educated and trained in
their respective fields.
Third, contrary to Agham's claim that LAMI had no ECC from the
DENR, the DENR restored LAMI's ECC. After LAMI was issued a Notice of
Violation of its ECC dated 1 June 2012 by the DENR-EMB R3, LAMI complied
with all the requirements and its ECC had been reinstated. In the
Letter 57 dated 24 October 2012, Dir. Claudio wrote:
xxx xxx xxx
Regarding the alleged cutting of trees and leveling of the mountain, we
have verified that:
1. There is no illegal cutting of trees since a Tree Cutting
Permit was issued by the Community Environment and
Natural Resources Office (CENRO). Monitoring of the
compliance with the conditions of the said Permit was
also undertaken by the CENRO; and
2. There is no leveling of a mountain. As certified by the
Mines and Geosciences Bureau Region 3, the landform
 in the area is an elongated mound which is 164 meters in
length and 94 meters in width and its maximum elevation
is 26 meters above mean sea level.
Further, we recognize your efforts in revegetating the exposed side
slopes of the cut portion of the mound and the construction of drainage
system and silt traps to prevent the siltation of the bay.
The violated ECC conditions have been rectified and clarified while the
penalty corresponding to such violation was fully paid and the required
rehabilitation and mitigating measures were already implemented as
committed. As such, the matter leading to the issuance of the NOV is
now resolved.

As ECC holder, you are enjoined to ensure the effective carrying out of
your Environmental Management and Monitoring Plan.
Even Rep. Dan S. Fernandez, the Chairman of the Committee on
Ecology of the House of Representatives, acknowledged that LAMI had fully
complied with its ECC conditions. In a Letter 58 dated 26 February 2013
addressed to the DENR Secretary, Rep. Fernandez wrote:
xxx xxx xxx
On 21 February 2013, the Committee on Ecology received a letter from
Director Lormelyn E. Claudio, the Regional Director for Region III of
the Environment Management Bureau of the DENR. The letter
ascertains that, among other things, based on the investigation and
monitoring conducted led by Dir. Claudio, LAMI is, to date, in
compliance with its environmental commitments as required under the
ECC and said Order.
In view thereof, the Committee would like to express its appreciation
for the apt and prompt action on the matter. We expect that the subject
company's conformity to environmental laws, as well as its activities'
impact on the environment, will remain closely monitored and
evaluated.
xxx xxx xxx
Last, the alleged scraping off or leveling of land at LAMI's port site is
deemed insignificant to pose a detrimental impact on the environment. AcICHD

Dir. Claudio testified at the hearing conducted by the Court of Appeals

on 26 September 2012 that the cut and fill operations of LAMI only affected
the port site but not the surrounding area and that the environmental effect
was only minimal and insignificant. The relevant portions of Dir. Claudio's
testimony provide:
A/Sol. Chua Cheng:
 Madam Witness, you made mention that the cut and fill operations
involved the . . . or the causeway created during the cut and fill
operation is 82 meters in length and 8 meters in width. What is
the overall environment effect of this cut and fill operation in
Barangay Bolitoc?
Dir. Claudio:
It is minimal, insignificant and temporary in nature, Sir, because as I
mentioned, only 11,580 cubic meters had been stripped off and
the tree cutting which had been issued with a permit is only less
than about 37 trees based on the Post Evaluation Report done by
the CENRO, Sir.
A/Sol. Chua Cheng:
What about the effect of such cut and fill operations as regards the two
provinces, Pangasinan and Zambales, does it have any effect or
what is the extent of the effect?
Dir. Claudio:
It is just localized; it is just confined within the project
area because we required them to put up the drainage system,
the drainage, the canals and the siltation ponds and the laying of
armour rocks for the sea wall and the construction of causeway,
Sir, to avoid erosion and sedimentation. We also required them to
rehabilitate the exposed slopes which they already did.
xxx xxx xxx
A/Sol. Chua Cheng:
Only in the project area specifically located only in Brgy. Bolitoc?
Dir. Claudio:
Brgy. Bolitoc, Sta. Cruz, Zambales, Sir. It does not in any way affect
or cannot affect the Province of Pangasinan as alleged,
Sir. 59 (Emphasis supplied)
Even the Geoscience Foundation, Inc., which conducted a scientific
study on the port site regarding the possible damage to the environment from
the construction of the port facility, found that the landform was too small to
protect against typhoons, monsoons and floods due to heavy rains and storm
surges. Its Report 60 on the Topographical, Geomorphological and
Climatological Characterization of the LAMI Port undertaken in September
2012 stated:
6.0 Findings in Relation to the Petition for Writ of Kalikasan
xxx xxx xxx
1. The LAMI Port is partly situated in a hill and not a mountain. The
topographic and geologic maps of NAMRIA and the MGB do not show
the presence of a mountain where the port is partly located. The
detailed topographic survey moreover indicates that this hill had an
original elevation of 23 m.MSL in the portion where it was excavated to
accommodate the access road leading to the wharf.
Mountains attain much higher elevations than 23 m.MSL. Kendall, et
al. (1967), defines a mountain as having a height of at least 900
meters and are usually characterized by a vertical zonation of
landscape and vegetation due to increasing elevations.
2. No leveling of a mountain was done. The construction of the access
road required a V-cut through the hill that lowered it from 23 m.MSL to
7.5 m.MSL. This elevation is still much higher than the flat land
surrounding the hill. The hill had an original length of 600 meters
through which the V-cut, which has an average width of 26.5 meters,
was excavated. Only a small portion of the hill was therefore altered.
The topographic survey further reveals that the total volume of earth
material removed is 24,569 cubic meters, which would fit a room that
has a length, width and height of 29 meters. This amount of earth
material does not constitute the volume of a mountain.
3. The hill is too small and not in the right location to protect against
typhoons. The hill cannot serve as a natural protective barrier against
typhoons in Zambales and some towns of Pangasinan because it is
too small compared to the magnitude of typhoons. Typhoons approach
the country from east and move in a west to northwest direction
through Zambales Province as clarified in Figure 7. They are even able
to cross the Sierra Madre Range and the Zambales Range before
reaching Zambales Province. Since the port is situated at the western
coastline of Zambales, it would be the last thing a typhoon would pass
by as it moves through Zambales.
4. The hill is too small to protect against the Southwest Monsoon. The
hill does not shield any area from the heavy rains that batter the
country during the Southwest Monsoon. It is too small to alter the effect
of the Southwest Monsoon in the way that the Sierra Madre Range
forces the Northwest Monsoon to rise over it and release much of its
moisture as orographic precipitation on the windward side of the range
such that the leeward side is drier.
5. The hill is not in the right location to protect against flooding due to
heavy rains. The hill does not protect against the floods that occur from
heavy rains. Since Zambales regionally slopes down to the west, flood
water during heavy rains will move from east to west following the flow
direction of rivers in the area. Flood water from the Zambales Range
will inundate the coastal plain first before reaching the coastline where
 the hill is situated. Figure 11 depicts the flow direction of flood water in
the municipality.TAIaHE

6. The hill is too small to protect against floods due to storm

surges. Storm surges appear as large waves that are caused by the
pushing of the wind on the surface of the sea or ocean during storm
events. Since the hill has a present length of only 420 meters, it is too
small to prevent flooding due to storm surges. The large waves will just
skirt the hill and sweep through the low-lying coastland to the west and
east of the hill.
The hill shields against the direct impact of large, south-moving waves
to several homes located immediately south of the hill. Since the V-cut
of the access road is small compared to the rest of the hill and
terminates at a relatively high 7.5 m.MSL, this protection offered by the
hill is not significantly diminished. 61
Further, the DENR composite team, in its Report of
Investigation 62 conducted on 20-21 June 2012 on LAMI's port site to ensure
that LAMI undertook mitigating measures in its property, found that LAMI's
activities posed only a minimal or insignificant impact to the environment. The
relevant portions of the Report state:
Findings and Observations:
The composite team gathered data and the following are the
initial observations:
1. Site preparation which includes site grading/surface stripping, low
ridge cut and fill and reclamation works were observed to have been
undertaken within the project area;
2. A total volume of approximately 11,580 cubic meters of soil
cut/stripped from low ridge was noted being used for causeway
construction. Part of the discarded soil with a volume of 5,843 cubic
meters was already used for causeway preparation while the
remaining 5,735 cubic meters was noted still on stockpile area;
3. Discarded soil generated from ridge cut and fill consists of clay with
sandstone and shale;
4. The partial low ridge cut and fill poses minimal or insignificant
impact to the environment due to threats of storm surges, strong
winds and flooding because the protective natural barriers
against northeast monsoon are the mountain ranges in the
eastern part of Zambales and Pangasinan which are geologically
and historically effective as in the case of the adjoining and
operational ports of the DMCI and Shang Fil.
5. The height of the low ridge is still maintained at an elevation of
23.144 meters above sea level while the constructed access road to
 the causeway has an elevation of 7.46 meters with a width of 8 meters
and length of 80-100 meters only.
Remarks and Recommendation:
The construction of the access road on the low ridge does
not pose adverse environmental impact to the adjoining
communities more so to the larger areas or the entire province of
Zambales and Pangasinan.
It was determined as a result of our verification and based on
the above findings supported with field GPS reading thatthere had
been no leveling of the mountain undertaken in the project site as
there is no mountain existing inside the area covered by the ECC
issued by EMB-Region 3. The landform claimed by Mayor Marty to be
a mountain is actually an elongated low ridge with a peak of
approximately 23 meters above sea level which is located in a private
land falling under Block 1, Alienable and Disposable Land per LC Map
635 with Lot No. 2999 originally owned by Mr. Severo Monsalud which
was transferred to Sta. Cruz Mineral Port Corporation with a Contract
of Lease with LAMI (data provided by CENRO Masinloc through a
Memorandum dated June 4, 2012). The proponent (LAMI) only
implemented road cutting of low ridge in the middle to make an access
way to the proposed marine loading facility. More so, tree cutting done
by LAMI is covered by a Permit to Cut issued by DENR-Region 3-
CENRO, Masinloc which is responsible for the inventory and
monitoring of cut trees.
. . . . 63 (Emphasis supplied)
Thus, from all the foregoing, we agree with the appellate court, in its
original Decision dated 23 November 2012, when it denied the petition for a
Writ of Kalikasan:
As between the too general and very hypothetical allegation of
large-scale environmental damage at one hand, and the remarks of
government experts on the other, We are inclined to give more credit
to the latter. Below is the further articulation of our stance:
Presumption of regularity
It is a legal presumption, born of wisdom and experience, that
official duty has been regularly performed. Therefore, the fact that the
"remarks and recommendation" of the composite team from EMB R3,
MGB R3, and PENRO Zambales were made in the exercise of their
government function, the presumption of regularity in the performance
of such official duty stands. It is incumbent upon petitioner to prove
otherwise, a task which it failed to do here.
Expert findings are afforded great weight
 The findings of facts of administrative bodies charged with their
specific field of expertise, are afforded great weight by the courts, and
in the absence of substantial showing that such findings are made from
an erroneous estimation of the evidence presented, they are
conclusive, and in the interest of stability of the governmental structure,
should not be disturbed. . . . . 64
cDHAES

In sum, contrary to the findings of the appellate court in its Amended

Decision dated 13 September 2013, we find that LAMI did not cause any
environmental damage that prejudiced the life, health or property of the
inhabitants residing in the municipality of Sta. Cruz, the province of Zambales
or in the neighboring province of Pangasinan. Agham, as the party that has
the burden to prove the requirements for the issuance of the privilege of the
Writ of Kalikasan, failed to prove (1) the environmental laws allegedly violated
by LAMI; and (2) the magnitude of the environmental damage allegedly
caused by LAMI in the construction of LAMI's port facility in Brgy. Bolitoc, Sta.
Cruz, Zambales and its surrounding area. Thus, the petition for the issuance
of the privilege of the Writ of Kalikasan must be denied.
WHEREFORE, we GRANT the petition. We REVERSE and SET
ASIDE the Amended Decision dated 13 September 2013 of the Court of
Appeals and REINSTATE AND AFFIRM the original Decision dated 23
November 2012 of the Court of Appeals in CA-G.R. SPNo. 00012 which
DENIED the petition for the issuance of the privilege of the Writ of Kalikasan.
SO ORDERED.
(LNL Archipelago Minerals, Inc. v. Agham Party List, G.R. No. 209165, [April 12,
|||

2016])
 [G.R. No. 211010. March 7, 2017.]

VICTORIA SEGOVIA, RUEL LAGO, CLARIESSE JAMI CHAN,

REPRESENTING THE CARLESS PEOPLE OF THE
PHILIPPINES; GABRIEL ANASTACIO, REPRESENTED BY HIS
MOTHER GRACE ANASTACIO, DENNIS ORLANDO
SANGALANG, REPRESENTED BY HIS MOTHER MAY ALILI
SANGALANG, MARIA PAULINA CASTAÑEDA, REPRESENTED
BY HER MOTHER ATRICIA ANN CASTAÑEDA,
REPRESENTING THE CHILDREN OF THE PHILIPPINES AND
CHILDREN OF THE FUTURE; AND RENATO PINEDA, JR.,
ARON KERR MENGUITO, MAY ALILI SANGALANG, AND
GLYNDA BATHAN BATERINA, REPRESENTING CAR-
OWNERS WHO WOULD RATHER NOT HAVE CARS IF GOOD
PUBLIC TRANSPORTATION WERE SAFE, CONVENIENT,
ACCESSIBLE AND
RELIABLE, petitioners, vs. THE CLIMATE CHANGECOMMISSIO
N, REPRESENTED BY ITS CHAIRMAN, HIS EXCELLENCY
BENIGNO S. AQUINO III, AND ITS COMMISSIONERS MARY
ANN LUCILLE SERING, HEHERSON ALVAREZ AND NADAREV
SANO; DEPARTMENT OF TRANSPORTATION AND
COMMUNICATIONS (DOTC) REPRESENTED BY ITS
SECRETARY, HONORABLE JOSEPH ABAYA; DEPARTMENT
OF PUBLIC WORKS AND HIGHWAYS (DPWH) AND THE ROAD
BOARD, REPRESENTED BY ITS SECRETARY, HONORABLE
ROGELIO SINGSON; DEPARTMENT OF INTERIOR AND
LOCAL GOVERNMENT (DILG), REPRESENTED BY ITS
SECRETARY, HONORABLE MANUEL ROXAS; DEPARTMENT
OF ENVIRONMENT AND NATURAL RESOURCES (DENR),
REPRESENTED BY ITS SECRETARY, HONORABLE RAMON
PAJE; DEPARTMENT OF BUDGET AND
MANAGEMENT (DBM), REPRESENTED BY ITS SECRETARY,
HONORABLE FLORENCIO ABAD; METROPOLITAN MANILA
DEVELOPMENT AUTHORITY (MMDA), REPRESENTED BY ITS
CHAIRMAN, FRANCIS TOLENTINO; DEPARTMENT OF
AGRICULTURE (DA), REPRESENTED BY ITS SECRETARY,
HONORABLE PROCESO ALCALA; AND JOHN DOES,
REPRESENTING AS YET UNNAMED LOCAL GOVERNMENT
UNITS AND THEIR RESPECTIVE LOCAL CHIEF EXECUTIVE,
JURIDICAL ENTITIES, AND NATURAL PERSONS WHO FAIL
OR REFUSE TO IMPLEMENT THE LAW OR COOPERATE IN
THE IMPLEMENTATION OF THE LAW, respondents.
 DECISION
CAGUIOA, J : p

This is a petition for the issuance of writs of kalikasan and

continuing mandamus to compel the implementation of the following
environmental laws and executive issuances — Republic Act No. (RA)
9729 1 (Climate Change Act), and RA 8749 2 (Clean Air Act); Executive
Order No. 774 3 (EO 774); AO 254, s. 2009 AO 171
Accordingly, the Petitioners seek to compel: (a) the public respondents
to: (1) implement the Road Sharing Principle in all roads; (2) divide all roads
lengthwise, one-half (1/2) for all-weather sidewalk and bicycling, the other half
for Filipino-made transport vehicles; (3) submit a time-bound action plan to
implement the Road Sharing Principle throughout the country; (b) the Office of
the President, Cabinet officials and public employees of Cabinet members to
reduce their fuel consumption by fifty percent (50%) and to take public
transportation fifty percent (50%) of the time; (c) Public respondent DPWH to
demarcate and delineate the road right-of-way in all roads and sidewalks;
and (d) Public respondent DBM to instantly release funds for Road Users'
Tax. 6
The Facts
To address the clamor for a more tangible response to climate change,
Former President Gloria Macapagal-Arroyo issued AO 171 which created the
Presidential Task Force on Climate Change (PTFCC) on February 20, 2007.
This body was reorganized throughEO 774, which designated the President
as Chairperson, and cabinet secretaries as members of the Task Force. EO
774 expressed what is now referred to by the petitioners as the "Road Sharing
Principle." Its Section 9 (a) reads:
Section 9. Task Group on Fossil Fuels. — (a) To reduce the
consumption of fossil fuels, the Department of Transportation and
Communications (DOTC) shall lead a Task Group to reform the
transportation sector. The new paradigm in the movement of men and
things must follow a simple principle: "Those who have less in wheels
must have more in road." For this purpose, the system shall favor
nonmotorized locomotion and collective transportation system
(walking, bicycling, and the man-powered mini-train).
In 2009, AO 254 was issued mandating the DOTC (as lead agency for
the Task Group on Fossil Fuels or TGFF) to formulate a national
Environmentally Sustainable Transport Strategy (EST) for the Philippines. The
Road Sharing Principle is similarly mentioned, thus:
 SECTION 4. Functions of the TGFF. — In addition to the
functions provided in EO 774, the TGFF shall initiate and pursue the
formulation of the National EST Strategy for the Philippines.
Specifically, the TGFF shall perform the following functions:
(a) Reform the transport sector to reduce the consumption of
fossil fuels. The new paradigm in the movement of men
and things must follow a simple principle: "Those who have
less in wheels must have more in road." For this purpose,
the system shall favor non-motorized locomotion and
collective transportation system (walking, bicycling, and the
man-powered mini-train).
xxx xxx xxx
Later that same year, Congress passed the Climate Change Act. It
created the Climate Change Commission which absorbed the functions of the
PTFCC and became the lead policy-making body of the government which
shall be tasked to coordinate, monitor and evaluate the programs and action
plans of the government relating to climate change. 7 CAIHTE

Herein petitioners wrote respondents regarding their pleas for

implementation of the Road Sharing Principle, demanding the reform of the
road and transportation system in the whole country within thirty (30) days
from receipt of the said letter — foremost, through the bifurcation of roads and
the reduction of official and government fuel consumption by fifty percent
(50%). 8 Claiming to have not received a response, they filed this petition.
The Petition
Petitioners are Carless People of the Philippines, parents, representing
their children, who in turn represent "Children of the Future, and Car-owners
who would rather not have cars if good public transportation were safe,
convenient, accessible, available, and reliable." They claim that they are
entitled to the issuance of the extraordinary writs due to the alleged failure
and refusal of respondents to perform an act mandated by environmental
laws, and violation of environmental laws resulting in environmental damage
of such magnitude as to prejudice the life, health and property of all
Filipinos. 9
These identified violations 10 include: (a) The government's violation of
"atmospheric trust" as provided under Article XI,Section 1 of the Constitution,
and thoughtless extravagance in the midst of acute public want under Article
25 of the Civil Code for failure to reduce personal and official consumption of
fossil fuels by at least fifty percent (50%); (b) DOTC and DPWH's failure to
implement the Road Sharing Principle under EO 774; (c) DA's failure to
devote public open spaces along sidewalks, roads and parking lots to
sustainable urban farming as mandated by Section 12 (b) 11 of EO
774; (d) DILG's failure to coordinate with local government units (LGUs) to
guide them on the Road Sharing Principle under Section 9 (g) 12 of EO
774; (e) DENR's failure to reduce air pollutant emissions; and lastly, (f) DBM's
failure to make available Road Users' Tax for purposes stated in Section 9
(e) 13 of EO 774.
In gist, petitioners contend that respondents' failure to implement the
foregoing laws and executive issuances resulted in the continued degradation
of air quality, particularly in Metro Manila, in violation of the petitioners'
constitutional right to a balanced and healthful ecology, 14 and may even be
tantamount to deprivation of life, and of life sources or "land, water, and air"
by the government without due process of law. 15 They also decry the
"unequal" protection of laws in the prevailing scheme, claiming that ninety-
eight percent (98%) of Filipinos are discriminated against by the law when the
car-owning two percent (2%) is given almost all of the road space and while
large budgets are allocated for construction and maintenance of roads, hardly
any budget is given for sidewalks, bike lanes and non-motorized
transportation systems. 16
Respondents, through the Office of the Solicitor General, filed
their Comment seeking the outright dismissal of the petition for lack of
standing and failure to adhere to the doctrine of hierarchy of
courts. 17 Moreover, respondents argue that petitioners are not entitled to the
reliefs prayed for.
Specifically, respondents assert that petitioners are not entitled to a writ
of kalikasan because they failed to show that the public respondents are guilty
of an unlawful act or omission; state the environmental law/s violated; show
environmental damage of such magnitude as to prejudice the life, health or
property of inhabitants of two or more cities; and prove that non-
implementation of Road Sharing Principle will cause environmental damage.
Respondents likewise assert that petitioners are similarly not entitled to a
Continuing Mandamus because: (a) there is no showing of a direct or
personal injury or a clear legal right to the thing demanded; (b) the writ will not
compel a discretionary act or anything not in a public officer's duty to do (i.e.,
the manner by which the Road Sharing Principle will be applied; and to
compel DA to exercise jurisdiction over roadside lands); and (c)DBM cannot
be compelled to make an instant release of funds as the same requires an
appropriation made by law (Article VI, Section 29 [1] of the Constitution) and
the use of the Road Users' Tax (more appropriately, the Motor Vehicle Users'
Charge) requires prior approval of the Road Board. 18
In any event, respondents denied the specific violations alleged in the
petition, stating that they have taken and continue to take measures to
improve the traffic situation in Philippine roads and to improve the
environment condition — through projects and programs such as: priority
tagging of expenditures for climate change adaptation and mitigation, the
Integrated Transport System which is aimed to decongest major
thoroughfares, Truck Ban, Anti-Smoke Belching Campaign, Anti-Colorum,
Mobile Bike Service Programs, and Urban Re-Greening Programs. These
projects are individually and jointly implemented by the public respondents to
improve the traffic condition and mitigate the effects of motorized vehicles on
the environment. 19 Contrary to petitioners' claims, public respondents assert
that they consider the impact of the transport sector on the environment, as
shown in the Philippine National Implementation Plan on Environment
Improvement in the Transport Sector which targets air pollution improvement
actions, greenhouse gases emission mitigation, and updating of noise
pollution standards for the transport sector.
In response, petitioner filed their Reply, substantially reiterating the
arguments they raised in the Petition.
ISSUES
From the foregoing submissions, the main issues for resolution are:
1. Whether or not the petitioners have standing to file the petition;
2. Whether or not the petition should be dismissed for failing to adhere
to the doctrine of hierarchy of courts; and
3. Whether or not a writ of Kalikasan and/or
Continuing Mandamus should issue.
RULING
The petition must be dismissed.
Procedural Issues
Citing Section 1, Rule 7 of the Rules of Procedure for Environmental
Cases 20 (RPEC), respondents argue that the petitioners failed to show that
they have the requisite standing to file the petition, being representatives of a
rather amorphous sector of society and without a concrete interest or
injury. 21 Petitioners counter that they filed the suit as citizens, taxpayers, and
representatives; that the rules on standing had been relaxed following the
decision in Oposa v. Factoran; 22 and that, in any event, legal standing is a
procedural technicality which the Court may set aside in its discretion. 23
The Court agrees with the petitioners' position. The RPEC did liberalize
the requirements on standing, allowing the filing of citizen's suit for the
enforcement of rights and obligations under environmental laws. 24 This has
been confirmed by this Court's rulings in Arigo v. Swift, 25 and International
Service for the Acquisition of Agri-BioTech Applications, Inc. v. Greenpeace
Southeast Asia (Philippines). 26 However, it bears noting that there is a
difference between a petition for the issuance of a writ of kalikasan, wherein it
is sufficient that the person filing represents the inhabitants prejudiced by the
environmental damage subject of the writ;27 and a petition for the issuance of
a writ of continuing mandamus, which is only available to one who is
personally aggrieved by the unlawful act or omission. 28
Respondents also seek the dismissal of the petition on the ground that
the petitioners failed to adhere to the doctrine of hierarchy of courts,
reasoning that since a petition for the issuance of a writ of kalikasan must be
filed with the Supreme Court or with any of the stations of the Court of
Appeals, 29 then the doctrine of hierarchy of courts is
applicable. 30 Petitioners, on the other hand, cite the same provision and
argue that direct recourse to this Court is available, and that the provision
shows that the remedy to environmental damage should not be limited to the
territorial jurisdiction of the lower courts. 31
The respondents' argument does not persuade. Under the RPEC, the
writ of kalikasan is an extraordinary remedy covering environmental damage
of such magnitude that will prejudice the life, health or property of inhabitants
in two or more cities or provinces. It is designed for a narrow but special
purpose: to accord a stronger protection for environmental rights, aiming,
among others, to provide a speedy and effective resolution of a case involving
the violation of one's constitutional right to a healthful and balanced ecology
that transcends political and territorial boundaries, and to address the
potentially exponential nature of large-scale ecological threats. 32 At the very
least, the magnitude of the ecological problems contemplated under
the RPEC satisfies at least one of the exceptions to the rule on hierarchy of
courts, as when direct resort is allowed where it is dictated by public welfare.
Given that the RPEC allows direct resort to this Court, 33 it is ultimately within
the Court's discretion whether or not to accept petitions brought directly before
it.
DETACa

Requisites for issuance of Writs of

Kalikasan and Continuing
Mandamus
We find that the petitioners failed to establish the requisites for the
issuance of the writs prayed for.
For a writ of kalikasan to issue, the following requisites must concur:
1. there is an actual or threatened violation of the constitutional right to
a balanced and healthful ecology;
 2. the actual or threatened violation arises from an unlawful act or
omission of a public official or employee, or private individual or
entity; and
3. the actual or threatened violation involves or will lead to an
environmental damage of such magnitude as to prejudice the life,
health or property of inhabitants in two or more cities or
provinces. 34
It is well-settled that a party claiming the privilege for the issuance of a
writ of kalikasan has to show that a law, rule or regulation was violated or
would be violated. 35
In this case, apart from repeated invocation of the constitutional right to
health and to a balanced and healthful ecology and bare allegations that their
right was violated, the petitioners failed to show that public respondents are
guilty of any unlawful act or omission that constitutes a violation of the
petitioners' right to a balanced and healthful ecology.
While there can be no disagreement with the general propositions put
forth by the petitioners on the correlation of air quality and public health,
petitioners have not been able to show that respondents are guilty of violation
or neglect of environmental laws that causes or contributes to bad air quality.
Notably, apart from bare allegations, petitioners were not able to show that
respondents failed to execute any of the laws petitioners cited. In fact, apart
from adducing expert testimony on the adverse effects of air pollution on
public health, the petitioners did not go beyond mere allegation in establishing
the unlawful acts or omissions on the part of the public respondents that have
a causal link or reasonable connection to the actual or threatened violation of
the constitutional right to a balanced and healthful ecology of the magnitude
contemplated under the Rules, as required of petitions of this nature. 36
Moreover, the National Air Quality Status Report for 2005-2007
(NAQSR) submitted by the petitioners belies their claim that the DENR failed
to reduce air pollutant emissions — in fact, the NAQSR shows that the
National Ambient Total Suspended Particulates (TSP) value used to
determine air quality has steadily declined from 2004 to 2007, 37 and while the
values still exceed the air quality guideline value, it has remained on this
same downward trend until as recently as 2011. 38
On the other hand, public respondents sufficiently showed that they did
not unlawfully refuse to implement or neglect the laws, executive and
administrative orders as claimed by the petitioners. Projects and programs
that seek to improve air quality were undertaken by the respondents, jointly
and in coordination with stakeholders, such as: priority tagging of
expenditures for climatechange adaptation and mitigation, the Integrated
Transport System which is aimed to decongest major thoroughfares, Truck
Ban, Anti-Smoke Belching Campaign, Anti-Colorum, Mobile Bike Service
Programs, and Urban Re-Greening Programs.
In fact, the same NAQSR submitted by the petitioners show that the
DENR was, and is, taking concrete steps to improve national air quality, such
as information campaigns, free emission testing to complement the anti-
smoke-belching program and other programs to reduce emissions from
industrial smokestacks and from open burning of waste. 39 The efforts of local
governments and administrative regions in conjunction with other executive
agencies and stakeholders are also outlined. 40
Similarly, the writ of continuing mandamus cannot issue.
Rule 8, Section 1 of the RPEC lays down the requirements for a petition
for continuing mandamus as follows:
RULE 8
WRIT OF CONTINUING MANDAMUS
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.
First, the petitioners failed to prove direct or personal injury arising from
acts attributable to the respondents to be entitled to the writ. While the
requirements of standing had been liberalized in environmental cases, the
general rule of real party-in-interest applies to a petition for
continuing mandamus. 41
Second, the Road Sharing Principle is precisely as it is denominated —
a principle. It cannot be considered an absolute imposition to encroach upon
the province of public respondents to determine the manner by which this
principle is applied or considered in their policy decisions. Mandamus lies to
compel the performance of duties that are purely ministerial in nature, not
those that are discretionary, 42 and the official can only be directed
by mandamus to act but not to act one way or the other. The duty being
enjoined in mandamus must be one according to the terms provided in the
law itself. Thus, the recognized rule is that, in the performance of an official
duty or act involving discretion, the corresponding official can only be directed
by mandamus to act, but not to act one way or the other. 43
This Court cannot but note that this is precisely the thrust of the petition
— to compel the respondents to act one way to implement the Road Sharing
Principle — to bifurcate all roads in the country to devote half to sidewalk and
bicycling, and the other to Filipino-made transport — when there is nothing
in EO 774, AO 254 and allied issuances that require that specific course of
action in order to implement the same. Their good intentions notwithstanding,
the petitioners cannot supplant the executive department's discretion with
their own through this petition for the issuance of writs of kalikasan and
continuing mandamus.
In this case, there is no showing of unlawful neglect on the part of the
respondents to perform any act that the law specifically enjoins as a duty —
there being nothing in the executive issuances relied upon by the petitioners
that specifically enjoins the bifurcation of roads to implement the Road
Sharing Principle. To the opposite, the respondents were able to show that
they were and are actively implementing projects and programs that seek to
improve air quality.
At its core, what the petitioners are seeking to compel is not the
performance of a ministerial act, but a discretionary act — the manner of
implementation of the Road Sharing Principle. Clearly, petitioners' preferred
specific course of action (i.e., the bifurcation of roads to devote for all-weather
sidewalk and bicycling and Filipino-made transport vehicles) to implement the
Road Sharing Principle finds no textual basis in law or executive issuances for
it to be considered an act enjoined by law as a duty, leading to the necessary
conclusion that the continuing mandamus prayed for seeks not the
implementation of an environmental law, rule or regulation, but to control the
exercise of discretion of the executive as to how the principle enunciated in an
executive issuance relating to the environment is best implemented. Clearly,
the determination of the means to be taken by the executive in implementing
or actualizing any stated legislative or executive policy relating to the
environment requires the use of discretion. Absent a showing that the
executive is guilty of "gross abuse of discretion, manifest injustice or palpable
excess of authority," 44 the general rule applies that discretion cannot be
checked via this petition for continuing mandamus. Hence, the
continuing mandamuscannot issue.
Road Users' Tax
Finally, petitioners seek to compel DBM to release the Road Users' Tax
to fund the reform of the road and transportation system and the
implementation of the Road Sharing Principle.
It bears clarifying that the Road Users' Tax mentioned in Section 9 (e)
of EO 774, apparently reiterated in Section 5 of AO 254is the Special Vehicle
Pollution Control Fund component of the Motor Vehicle Users'
Charge ("MVUC") imposed on owners of motor vehicles in RA 8794,
otherwise known as the Road Users' Tax Law. By the express provisions of
the aforementioned law, the amounts in the special trust accounts of the
MVUC are earmarked solely and used exclusively (1) for road maintenance
and the improvement of the road drainage, (2) for the installation of adequate
and efficient traffic lights and road safety devices, and (3) for the air pollution
control, and their utilization are subject to the management of the Road
Board. 45 Verily, the petitioners' demand for the immediate and unilateral
release of the Road Users' Tax by the DBM to support the petitioners'
operationalization of this Road Sharing Principle has no basis in law. The
executive issuances relied upon by the petitioner do not rise to the level of law
that can supplant the provisions of RA 8794 that require the approval of the
Road Board for the use of the monies in the trust fund. In other words, the
provisions on the release of funds by the DBM as provided in EO 774 and AO
254 are necessarily subject to the conditions set forth in RA 8794.
Notably, RA 9729, as amended by RA 10174, provides for the establishment
for the People's Survival Fund 46 that may be tapped for adaptation activities,
which similarly require approval from the PSF Board. 47 aDSIHc

That notwithstanding, the claim made by the petitioners that hardly any
budget is allotted to mitigating environmental pollution is belied by the priority
given to programs aimed at addressing and mitigating climate change that the
DBM and the CCC had been tagging and tracking as priority expenditures
since 2013. 48 With the coordination of the DILG, this priority tagging and
tracking is cascaded down to the local budget management of local
government units. 49
Other causes of action
As previously discussed, the petitioners' failure to show any violation on
the part of the respondents renders it unnecessary to rule on other allegations
of violation that the petitioners rely upon as causes of action against the public
respondents.
In fine, the allegations and supporting evidence in the petition fall short
in showing an actual or threatened violation of the petitioners' constitutional
right to a balanced and healthful ecology arising from an unlawful act or
 omission by, or any unlawful neglect on the part of, the respondents that
would warrant the issuance of the writs prayed for.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Sereno, C.J., Carpio, Leonardo-de Castro, Peralta, Bersamin, Del
Castillo, Mendoza, Reyes and Perlas-Bernabe, JJ., concur.
Velasco, Jr., J., please see Concurring Opinion.
Leonen, J., see separate Concurring Opinion.
Jardeleza, * J., took no part prior OSG action.
||| (Segovia v. Climate Change Commission, G.R. No. 211010, [March 7, 2017])
 [G.R. No. 206510. September 16, 2014.]

MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto

Princesa D.D.; MOST REV. DEOGRACIAS S. INIGUEZ, JR.,
Bishop-Emeritus of Caloocan, FRANCES Q. QUIMPO,
CLEMENTE G. BAUTISTA, JR., Kalikasan-PNE, MARIA
CAROLINA P. ARAULLO, RENATO M. REYES, JR., Bagong
Alyansang Makabayan, HON. NERI JAVIER COLMENARES,
Bayan Muna Party-list, ROLAND G. SIMBULAN, PH.D., Junk
VFA Movement, TERESITA R. PEREZ, PH.D., HON.
RAYMOND V. PALATINO, Kabataan Party-list, PETER SJ.
GONZALES, Pamalakaya, GIOVANNI A. TAPANG, PH. D.,
Agham, ELMER C. LABOG, Kilusang Mayo Uno, JOAN MAY E.
SALVADOR, Gabriela, JOSE ENRIQUE A. AFRICA, THERESA
A. CONCEPCION, MARY JOAN A. GUAN, NESTOR T.
BAGUINON, PH.D., A. EDSEL F. TUPAZ, petitioners, vs. SCOTT
H.SWIFT in his capacity as Commander of the U.S. 7th Fleet,
MARK A. RICE in his capacity as Commanding Officer of the
USS Guardian, PRESIDENT BENIGNO S. AQUINO III in his
capacity as Commander-in-Chief of the Armed Forces of the
Philippines, HON. ALBERT F. DEL ROSARIO, Secretary,
Department of Foreign Affairs, HON. PAQUITO OCHOA, JR.,
Executive Secretary, Office of the President, HON. VOLTAIRE
T. GAZMIN, Secretary, Department of National Defense, HON.
RAMON JESUS P. PAJE, Secretary, Department of
Environment and Natural Resources, VICE ADMIRAL JOSE
LUIS M. ALANO, Philippine Navy Flag Officer in Command,
Armed Forces of the Philippines, ADMIRAL RODOLFO D.
ISORENA, Commandant, Philippine Coast Guard,
COMMODORE ENRICO EFREN EVANGELISTA, Philippine
Coast Guard Palawan, MAJOR GEN. VIRGILIO O. DOMINGO,
Commandant of Armed Forces of the Philippines Command
and LT. GEN. TERRY G. ROBLING, US Marine Corps Forces,
Pacific and Balikatan 2013 Exercise Co-Director, respondents.

DECISION

VILLARAMA, JR., J : p

Before us is a petition for the issuance of a Writ of Kalikasan with prayer for the
issuance of a Temporary Environmental Protection Order (TEPO) under Rule 7
of A.M. No. 09-6-8-SC, otherwise known as the Rules of Procedure for
Environmental Cases (Rules), involving violations of environmental laws and
regulations in relation to the grounding of the US military ship USS Guardian over
the Tubbataha Reefs.
Factual Background
The name "Tubbataha" came from the Samal (seafaring people of southern
Philippines) language which means "long reef exposed at low tide." Tubbataha is
composed of two huge coral atolls — the north atoll and the south atoll — and
the Jessie Beazley Reef, a smaller coral structure about 20 kilometers north of
the atolls. The reefs of Tubbataha and Jessie Beazley are considered part of
Cagayancillo, a remote island municipality of Palawan. 1
In 1988, Tubbataha was declared a National Marine Park by virtue
of Proclamation No. 306 issued by President Corazon C. Aquino on August 11,
1988. Located in the middle of Central Sulu Sea, 150 kilometers southeast of
Puerto Princesa City, Tubbataha lies at the heart of the Coral Triangle, the global
center of marine biodiversity.
In 1993, Tubbataha was inscribed by the United Nations Educational Scientific
and Cultural Organization (UNESCO) as a World Heritage Site. It was
recognized as one of the Philippines' oldest ecosystems, containing excellent
examples of pristine reefs and a high diversity of marine life. The 97,030-hectare
protected marine park is also an important habitat for internationally threatened
and endangered marine species. UNESCO cited Tubbataha's outstanding
universal value as an important and significant natural habitat for in
situconservation of biological diversity; an example representing significant on-
going ecological and biological processes; and an area of exceptional natural
beauty and aesthetic importance. 2
On April 6, 2010, Congress passed Republic Act (R.A.) No. 10067, 3 otherwise
known as the "Tubbataha Reefs Natural Park (TRNP) Act of 2009" "to ensure the
protection and conservation of the globally significant economic, biological,
sociocultural, educational and scientific values of the Tubbataha Reefs into
perpetuity for the enjoyment of present and future generations." Under the "no-
take" policy, entry into the waters of TRNP is strictly regulated and many human
activities are prohibited and penalized or fined, including fishing, gathering,
destroying and disturbing the resources within the TRNP. The law likewise
created the Tubbataha Protected Area Management Board (TPAMB) which shall
be the sole policy-making and permit-granting body of the TRNP.
The USS Guardian is an Avenger-class mine countermeasures ship of the US
Navy. In December 2012, the US Embassy in the Philippines requested
diplomatic clearance for the said vessel "to enter and exit the territorial waters of
the Philippines and to arrive at the port of Subic Bay for the purpose of routine
ship replenishment, maintenance, and crew liberty." 4 On January 6, 2013, the
ship left Sasebo, Japan for Subic Bay, arriving on January 13, 2013 after a brief
stop for fuel in Okinawa, Japan.
On January 15, 2013, the USS Guardian departed Subic Bay for its next port of
call in Makassar, Indonesia. On January 17, 2013 at 2:20 a.m. while transiting
the Sulu Sea, the ship ran aground on the northwest side of South Shoal of the
Tubbataha Reefs, about 80 miles east-southeast of Palawan. No one was injured
in the incident, and there have been no reports of leaking fuel or oil.
On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift,
expressed regret for the incident in a press statement. 5Likewise, US
Ambassador to the Philippines Harry K. Thomas, Jr., in a meeting at the
Department of Foreign Affairs (DFA) on February 4, "reiterated his regrets over
the grounding incident and assured Foreign Affairs Secretary Albert F. del
Rosario that the United States will provide appropriate compensation for damage
to the reef caused by the ship." 6 By March 30, 2013, the US Navy-led salvage
team had finished removing the last piece of the grounded ship from the coral
reef.CDcaSA

On April 17, 2013, the above-named petitioners on their behalf and in

representation of their respective sector/organization and others, including
minors or generations yet unborn, filed the present petition against Scott
H. Swift in his capacity as Commander of the US 7th Fleet, Mark A. Rice in his
capacity as Commanding Officer of the USS Guardian and Lt. Gen. Terry G.
Robling, US Marine Corps Forces, Pacific and Balikatan 2013 Exercises Co-
Director ("US respondents"); President Benigno S. Aquino III in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines (AFP), DFA
Secretary Albert F. Del Rosario, Executive Secretary Paquito Ochoa, Jr.,
Secretary Voltaire T. Gazmin (Department of National Defense), Secretary Jesus
P. Paje (Department of Environment and Natural Resources), Vice-Admiral Jose
Luis M. Alano (Philippine Navy Flag Officer in Command, AFP), Admiral Rodolfo
D. Isorena (Philippine Coast Guard Commandant), Commodore Enrico Efren
Evangelista (Philippine Coast Guard-Palawan), and Major General Virgilio O.
Domingo (AFP Commandant), collectively the "Philippine respondents."
The Petition
Petitioners claim that the grounding, salvaging and post-salvaging operations of
the USS Guardian cause and continue to cause environmental damage of such
magnitude as to affect the provinces of Palawan, Antique, Aklan, Guimaras,
Iloilo, Negros Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu,
and Tawi-Tawi, which events violate their constitutional rights to a balanced and
healthful ecology. They also seek a directive from this Court for the institution of
civil, administrative and criminal suits for acts committed in violation of
environmental laws and regulations in connection with the grounding incident.
Specifically, petitioners cite the following violations committed by US respondents
under R.A. No. 10067: unauthorized entry (Section 19); non-payment of
conservation fees (Section 21); obstruction of law enforcement officer (Section
30); damages to the reef (Section 20); and destroying and disturbing resources
(Section 26 [g]). Furthermore, petitioners assail certain provisions of the Visiting
Forces Agreement (VFA) which they want this Court to nullify for being
unconstitutional.
The numerous reliefs sought in this case are set forth in the final prayer of the
petition, to wit:
WHEREFORE, in view of the foregoing, Petitioners respectfully pray that
the Honorable Court:
1. Immediately issue upon the filing of this petition a Temporary
Environmental Protection Order (TEPO) and/or a Writ of
Kalikasan, which shall, in particular,
a. Order Respondents and any person acting on their behalf,
to cease and desist all operations over the Guardian
grounding incident;
b. Initially demarcating the metes and bounds of the damaged
area as well as an additional buffer zone;
c. Order Respondents to stop all port calls and war games under
'Balikatan' because of the absence of clear guidelines,
duties, and liability schemes for breaches of those duties,
and require Respondents to assume responsibility for prior
and future environmental damage in general, and
environmental damage under the Visiting Forces
Agreement in particular.
d. Temporarily define and describe allowable activities of
ecotourism, diving, recreation, and limited commercial
activities by fisherfolk and indigenous communities near or
around the TRNP but away from the damaged site and an
additional buffer zone; ISCDEA

2. After summary hearing, issue a Resolution extending the TEPO until

further orders of the Court;
3. After due proceedings, render a Decision which shall include, without
limitation:
a. Order Respondents Secretary of Foreign Affairs, following the
dispositive portion of Nicolas v. Romulo, "to
forthwithnegotiate with the United States representatives
for the appropriate agreement on [environmental guidelines
 and environmental accountability] under Philippine
authorities as provided in Art. V[ ] of the VFA. . ."
b. Direct Respondents and appropriate agencies to commence
administrative, civil, and criminal proceedings against
erring officers and individuals to the full extent of the law,
and to make such proceedings public;
c. Declare that Philippine authorities may exercise primary and
exclusive criminal jurisdiction over erring U.S.
personnelunder the circumstances of this case;
d. Require Respondents to pay just and reasonable
compensation in the settlement of all meritorious claims for
damages caused to the Tubbataha Reef on terms and
conditions no less severe than those applicable to other
States, and damages for personal injury or death, if such
had been the case;
e. Direct Respondents to cooperate in providing for the
attendance of witnesses and in the collection and
production of evidence, including seizure and delivery of
objects connected with the offenses related to the
grounding of theGuardian;
f. Require the authorities of the Philippines and the United States
to notify each other of the disposition of all cases, wherever
heard, related to the grounding of the Guardian;
g. Restrain Respondents from proceeding with any
purported restoration, repair, salvage or post salvage plan
or plans, including cleanup plans covering the damaged
area of the Tubbataha Reef absent a just settlement
approved by the Honorable Court;
h. Require Respondents to engage in stakeholder and LGU
consultations in accordance with the Local Government
Code and R.A. 10067;
i. Require Respondent US officials and their representatives to
place a deposit to the TRNP Trust Fund defined under
Section 17 of RA 10067 as a bona fide gesture towards full
reparations;
j. Direct Respondents to undertake measures to rehabilitate the
areas affected by the grounding of the Guardian in light of
Respondents' experience in the Port Royale grounding in
2009, among other similar grounding incidents;
k. Require Respondents to regularly publish on a quarterly basis
and in the name of transparency and accountability
 such environmental damage assessment, valuation, and
valuation methods, in all stages of negotiation;
l. Convene a multisectoral technical working group to provide
scientific and technical support to the TPAMB;
m. Order the Department of Foreign Affairs, Department of
National Defense, and the Department of Environment and
Natural Resources to review the Visiting Forces Agreement
and the Mutual Defense Treaty to consider whether their
provisions allow for the exercise of erga omnes rights to a
balanced and healthful ecology and for damages which
follow from any violation of those rights;
n. Narrowly tailor the provisions of the Visiting Forces Agreement
for purposes of protecting the damaged areas of TRNP; ADHaTC

o. Declare the grant of immunity found in Article V ("Criminal

Jurisdiction") and Article VI of the Visiting Forces
Agreement unconstitutional for violating equal protection
and/or for violating the preemptory norm of
nondiscrimination incorporated as part of the law of the
land under Section 2, Article II, of the Philippine
Constitution;
p. Allow for continuing discovery measures;
q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs
in all other respects; and
4. Provide just and equitable environmental rehabilitation measures and
such other reliefs as are just and equitable under the
premises. 7 (Underscoring supplied.)
Since only the Philippine respondents filed their comment 8 to the petition,
petitioners also filed a motion for early resolution and motion to proceed ex
parte against the US respondents. 9
Respondents' Consolidated Comment
In their consolidated comment with opposition to the application for a TEPO and
ocular inspection and production orders, respondents assert that: (1) the grounds
relied upon for the issuance of a TEPO or writ of Kalikasan have become fait
accompli as the salvage operations on the USS Guardian were already
completed; (2) the petition is defective in form and substance; (3) the petition
improperly raises issues involving the VFA between the Republic of the
Philippines and the United States of America; and (4) the determination of the
extent of responsibility of the US Government as regards the damage to the
Tubbataha Reefs rests exclusively with the executive branch.
 The Court's Ruling
As a preliminary matter, there is no dispute on the legal standing of petitioners to
file the present petition.
Locus standi is "a right of appearance in a court of justice on a given
question." 10 Specifically, it is "a party's personal and substantial interest in a
case where he has sustained or will sustain direct injury as a result" of the act
being challenged, and "calls for more than just a generalized
grievance." 11 However, the rule on standing is a procedural matter which this
Court has relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers
and legislators when the public interest so requires, such as when the subject
matter of the controversy is of transcendental importance, of overreaching
significance to society, or of paramount public interest. 12
In the landmark case of Oposa v. Factoran, Jr., 13 we recognized the "public
right" of citizens to "a balanced and healthful ecology which, for the first time in
our constitutional history, is solemnly incorporated in the fundamental law." We
declared that the right to a balanced and healthful ecology need not be written
in the Constitution for it is assumed, like other civil and political rights guaranteed
in the Bill of Rights, to exist from the inception of mankind and it is an issue of
transcendental importance with intergenerational implications. Such right carries
with it the correlative duty to refrain from impairing the environment. 14
On the novel element in the class suit filed by the petitioners minors in Oposa,
this Court ruled that not only do ordinary citizens have legal standing to sue for
the enforcement of environmental rights, they can do so in representation of their
own and future generations. Thus: SaHcAC

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. 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.
Needless 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. 15 (Emphasis supplied.)
The liberalization of standing first enunciated in Oposa, insofar as it refers to
minors and generations yet unborn, is now enshrined in the Rules which allows
the filing of a citizen suit in environmental cases. The provision on citizen suits in
the Rules "collapses the traditional rule on personal and direct interest, on the
principle that humans are stewards of nature." 16
Having settled the issue of locus standi, we shall address the more fundamental
question of whether this Court has jurisdiction over the US respondents who did
not submit any pleading or manifestation in this case.
The immunity of the State from suit, known also as the doctrine of sovereign
immunity or non-suability of the State, 17 is expressly provided in Article XVI of
the 1987 Constitution which states:
Section 3. The State may not be sued without its consent.
In United States of America v. Judge Guinto, 18 we discussed the principle of
state immunity from suit, as follows:
The rule that a state may not be sued without its consent, now
expressed in Article XVI, Section 3, of the 1987 Constitution, is one of
the generally accepted principles of international law that we have
adopted as part of the law of our land under Article II, Section 2. . . . .
Even without such affirmation, we would still be bound by the generally
accepted principles of international law under the doctrine of
incorporation. Under this doctrine, as accepted by the majority of states,
such principles are deemed incorporated in the law of every civilized
state as a condition and consequence of its membership in the society of
nations. Upon its admission to such society, the state is automatically
obligated to comply with these principles in its relations with other states.
As applied to the local state, the doctrine of state immunity is based on
the justification given by Justice Holmes that "there can beno legal right
against the authority which makes the law on which the right depends."
[Kawanakoa v. Polybank, 205 U.S. 349] There are other practical
reasons for the enforcement of the doctrine. In the case of the foreign
state sought to be impleaded in the local jurisdiction, the added
inhibition is expressed in the maxim par in parem, non habet
imperium. All states are sovereign equals and cannot assert
jurisdiction over one another. A contrary disposition would, in the
language of a celebrated case, "unduly vex the peace of
nations." [De Haber v. Queen of Portugal, 17 Q. B. 171]
While the doctrine appears to prohibit only suits against the state without
its consent, it is also applicable to complaints filed against officials
 of the state for acts allegedly performed by them in the discharge
of their duties. The rule is that if the judgment against such officials will
require the state itself to perform an affirmative act to satisfy the same,
such as the appropriation of the amount needed to pay the damages
awarded against them, the suit must be regarded as against the state
itself although it has not been formally impleaded. [Garcia v. Chief of
Staff, 16 SCRA 120] In such a situation, the state may move to dismiss
the complaint on the ground that it has been filed without its
consent. 19 (Emphasis supplied.) aEcDTC

Under the American Constitution,the doctrine is expressed in the Eleventh

Amendment which reads:
The Judicial power of the United States shall not be construed to extend
to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of
any Foreign State.
In the case of Minucher v. Court of Appeals, 20 we further expounded on the
immunity of foreign states from the jurisdiction of local courts, as follows:
The precept that a State cannot be sued in the courts of a foreign
state is a long-standing rule of customary international law then closely
identified with the personal immunity of a foreign sovereign from suit
and, with the emergence of democratic states, made to attach not just to
the person of the head of state, or his representative, but also distinctly
to the state itself in its sovereign capacity. If the acts giving rise to a
suit are those of a foreign government done by its foreign agent,
although not necessarily a diplomatic personage, but acting in his
official capacity, the complaint could be barred by the immunity of
the foreign sovereign from suit without its consent. Suing a
representative of a state is believed to be, in effect, suing the state itself.
The proscription is not accorded for the benefit of an individual but for
the State, in whose service he is, under the maxim —par in parem, non
habet imperium — that all states are sovereign equals and cannot assert
jurisdiction over one another. The implication, in broad terms, is that if
the judgment against an official would require the state itself to perform
an affirmative act to satisfy the award, such as the appropriation of the
amount needed to pay the damages decreed against him, the suit must
be regarded as being against the state itself, although it has not been
formally impleaded. 21 (Emphasis supplied.)
In the same case we also mentioned that in the case of diplomatic immunity, the
privilege is not an immunity from the observance of the law of the territorial
sovereign or from ensuing legal liability; it is, rather, an immunity from the
exercise of territorial jurisdiction. 22
In United States of America v. Judge Guinto, 23 one of the consolidated cases
therein involved a Filipino employed at Clark Air Base who was arrested following
a buy-bust operation conducted by two officers of the US Air Force, and was
eventually dismissed from his employment when he was charged in court for
violation of R.A. No. 6425. In a complaint for damages filed by the said employee
against the military officers, the latter moved to dismiss the case on the ground
that the suit was against the US Government which had not given its consent.
The RTC denied the motion but on a petition for certiorari and prohibition filed
before this Court, we reversed the RTC and dismissed the complaint. We held
that petitioners US military officers were acting in the exercise of their official
functions when they conducted the buy-bust operation against the complainant
and thereafter testified against him at his trial. It follows that for discharging their
duties as agents of the United States, they cannot be directly impleaded for acts
imputable to their principal, which has not given its consent to be sued.
This traditional rule of State immunity which exempts a State from being sued in
the courts of another State without the former's consent or waiver has evolved
into a restrictive doctrine which distinguishes sovereign and governmental acts
(jure imperii) from private, commercial and proprietary acts (jure gestionis).
Under the restrictive rule of State immunity, State immunity extends only to
acts jure imperii. The restrictive application of State immunity is proper only when
the proceedings arise out of commercial transactions of the foreign sovereign, its
commercial activities or economic affairs. 24
In Shauf v. Court of Appeals, 25 we discussed the limitations of the State
immunity principle, thus:
It is a different matter where the public official is made to account
in his capacity as such for acts contrary to law and injurious to the
rights of plaintiff. As was clearly set forth by Justice Zaldivar in Director
of the Bureau of Telecommunications, et al. vs. Aligaen, etc., et al.:
"Inasmuch as the State authorizes only legal acts by its officers,
unauthorized acts of government officials or officers are not acts of the
State, and an action against the officials or officers by one whose rights
have been invaded or violated by such acts, for the protection of his
rights, is not a suit against the State within the rule of immunity of the
State from suit. In the same tenor, it has been said that an action at law
or suit in equity against a State officer or the director of a State
department on the ground that, while claiming to act for the State, he
violates or invades the personal and property rights of the plaintiff, under
an unconstitutional act or under an assumption of authority which he
does not have, is not a suit against the State within the constitutional
provision that the State may not be sued without its consent." The
rationale for this ruling is that the doctrine of state immunity cannot be
used as an instrument for perpetrating an injustice.
 xxx xxx xxx
The aforecited authorities are clear on the matter. They state that the
doctrine of immunity from suit will not apply and may not be
invoked where the public official is being sued in his private and
personal capacity as an ordinary citizen. The cloak of protection
afforded the officers and agents of the government is removed the
moment they are sued in their individual capacity. This situation usually
arises where the public official acts without authority or in excess of the
powers vested in him. It is a well-settled principle of law that a public
official may be liable in his personal private capacity for whatever
damage he may have caused by his act done with malice and in
bad faith, or beyond the scope of his authority or
jurisdiction. 26 (Emphasis supplied.)
In this case, the US respondents were sued in their official capacity as
commanding officers of the US Navy who had control and supervision over
the USS Guardian and its crew. The alleged act or omission resulting in the
unfortunate grounding of the USS Guardian on the TRNP was committed while
they were performing official military duties. Considering that the satisfaction of a
judgment against said officials will require remedial actions and appropriation of
funds by the US government, the suit is deemed to be one against the US itself.
The principle of State immunity therefore bars the exercise of jurisdiction by this
Court over the persons of respondents Swift, Rice and Robling. cEATSI

During the deliberations, Senior Associate Justice Antonio T. Carpio took the
position that the conduct of the US in this case, when its warship entered a
restricted area in violation of R.A. No. 10067 and caused damage to the TRNP
reef system, brings the matter within the ambit of Article 31 of the United Nations
Convention on the Law of the Sea (UNCLOS). He explained that while
historically, warships enjoy sovereign immunity from suit as extensions of their
flag State, Art. 31 of the UNCLOS creates an exception to this rule in cases
where they fail to comply with the rules and regulations of the coastal State
regarding passage through the latter's internal waters and the territorial sea.
According to Justice Carpio, although the US to date has not ratified the
UNCLOS, as a matter of long-standing policy the US considers itself bound by
customary international rules on the "traditional uses of the oceans" as codified in
UNCLOS, as can be gleaned from previous declarations by former Presidents
Reagan and Clinton, and the US judiciary in the case of United States v. Royal
Caribbean Cruise Lines, Ltd. 27
The international law of the sea is generally defined as "a body of treaty rules
and customary norms governing the uses of the sea, the exploitation of its
resources, and the exercise of jurisdiction over maritime regimes. It is a branch of
public international law, regulating the relations of states with respect to the uses
of the oceans." 28 The UNCLOS is a multilateral treaty which was opened for
signature on December 10, 1982 at Montego Bay, Jamaica. It was ratified by the
Philippines in 1984 but came into force on November 16, 1994 upon the
submission of the 60th ratification.
The UNCLOS is a product of international negotiation that seeks to balance State
sovereignty (mare clausum) and the principle of freedom of the high seas (mare
liberum). 29 The freedom to use the world's marine waters is one of the oldest
customary principles of international law. 30 The UNCLOS gives to the coastal
State sovereign rights in varying degrees over the different zones of the sea
which are: 1) internal waters, 2) territorial sea, 3) contiguous zone, 4) exclusive
economic zone, and 5) the high seas. It also gives coastal States more or less
jurisdiction over foreign vessels depending on where the vessel is located. 31 TCHEDA

Insofar as the internal waters and territorial sea is concerned, the Coastal State
exercises sovereignty, subject to the UNCLOS and other rules of international
law. Such sovereignty extends to the air space over the territorial sea as well as
to its bed and subsoil. 32
In the case of warships, 33 as pointed out by Justice Carpio, they continue to
enjoy sovereign immunity subject to the following exceptions:
Article 30
Non-compliance by warships with the laws and regulations of the
coastal State
If any warship does not comply with the laws and regulations of the
coastal State concerning passage through the territorial sea and
disregards any request for compliance therewith which is made to it, the
coastal State may require it to leave the territorial sea immediately.
Article 31
Responsibility of the flag State for damage caused by a warship or
other government ship operated for non-commercial purposes
The flag State shall bear international responsibility for any loss or
damage to the coastal State resulting from the non-compliance by a
warship or other government ship operated for non-commercial
purposes with the laws and regulations of the coastal State
concerning passage through the territorial sea or with the provisions
of this Convention or other rules of international law.
Article 32
Immunities of warships and other government ships operated for non-
commercial purposes
With such exceptions as are contained in subsection A and in articles 30
and 31, nothing in this Convention affects the immunities of warships
 and other government ships operated for non-commercial purposes.
(Emphasis supplied.)
A foreign warship's unauthorized entry into our internal waters with resulting
damage to marine resources is one situation in which the above provisions may
apply. But what if the offending warship is a non-party to the UNCLOS, as in this
case, the US?
An overwhelming majority — over 80% — of nation states are now members of
UNCLOS, but despite this the US, the world's leading maritime power, has not
ratified it.
While the Reagan administration was instrumental in UNCLOS'
negotiation and drafting, the U.S. delegation ultimately voted against and
refrained from signing it due to concerns over deep seabed mining
technology transfer provisions contained in Part XI. In a remarkable,
multilateral effort to induce U.S. membership, the bulk of UNCLOS
member states cooperated over the succeeding decade to revise the
objectionable provisions. The revisions satisfied the Clinton
administration, which signed the revised Part XI implementing
agreement in 1994. In the fall of 1994, President Clinton transmitted
UNCLOS and the Part XI implementing agreement to the Senate
requesting its advice and consent. Despite consistent support from
President Clinton, each of his successors, and an ideologically diverse
array of stakeholders, the Senate has since withheld the consent
required for the President to internationally bind the United States to
UNCLOS.
While UNCLOS cleared the Senate Foreign Relations Committee
(SFRC) during the 108th and 110th Congresses, its progress continues
to be hamstrung by significant pockets of political ambivalence over U.S.
participation in international institutions. Most recently, 111th Congress
SFRC Chairman Senator John Kerry included "voting out" UNCLOS for
full Senate consideration among his highest priorities. This did not occur,
and no Senate action has been taken on UNCLOS by the 112th
Congress. 34 THaCAI

Justice Carpio invited our attention to the policy statement given by President
Reagan on March 10, 1983 that the US will "recognize the rights of the other
states in the waters off their coasts, as reflected in the convention [UNCLOS], so
long as the rights and freedom of the United States and others under
international law are recognized by such coastal states", and President Clinton's
reiteration of the US policy "to act in a manner consistent with its [UNCLOS]
provisions relating to traditional uses of the oceans and to encourage other
countries to do likewise." Since Article 31 relates to the "traditional uses of the
oceans," and "if under its policy, the US 'recognize[s] the rights of the other
states in the waters off their coasts,'" Justice Carpio postulates that "there is
more reason to expect it to recognize the rights of other states in their internal
waters, such as the Sulu Sea in this case."
As to the non-ratification by the US, Justice Carpio emphasizes that "the US'
refusal to join the UNCLOS was centered on its disagreement with UNCLOS'
regime of deep seabed mining (Part XI) which considers the oceans and deep
seabed commonly owned by mankind," pointing out that such "has nothing to do
with its [the US'] acceptance of customary international rules on navigation."
It may be mentioned that even the US Navy Judge Advocate General's Corps
publicly endorses the ratification of the UNCLOS, as shown by the following
statement posted on its official website:
The Convention is in the national interest of the United States because it
establishes stable maritime zones, including a maximum outer limit for
territorial seas; codifies innocent passage, transit passage, and
archipelagic sea lanes passage rights; works against "jurisdictional
creep" by preventing coastal nations from expanding their own maritime
zones; and reaffirms sovereign immunity of warships, auxiliaries and
government aircraft.
xxx xxx xxx
Economically, accession to the Convention would support our national
interests by enhancing the ability of the US to assert its sovereign rights
over the resources of one of the largest continental shelves in the world.
Further, it is the Law of the Sea Convention that first established the
concept of a maritime Exclusive Economic Zone out to 200 nautical
miles, and recognized the rights of coastal states to conserve and
manage the natural resources in this Zone. 35
We fully concur with Justice Carpio's view that non-membership in the UNCLOS
does not mean that the US will disregard the rights of the Philippines as a
Coastal State over its internal waters and territorial sea. We thus expect the US
to bear "international responsibility" under Art. 31 in connection with the USS
Guardian grounding which adversely affected the Tubbataha reefs. Indeed, it is
difficult to imagine that our long-time ally and trading partner, which has been
actively supporting the country's efforts to preserve our vital marine resources,
would shirk from its obligation to compensate the damage caused by its warship
while transiting our internal waters. Much less can we comprehend a
Government exercising leadership in international affairs, unwilling to comply with
the UNCLOS directive for all nations to cooperate in the global task to protect
and preserve the marine environment as provided in Article 197, viz.:
Article 197
Cooperation on a global or regional basis.
 States shall cooperate on a global basis and, as appropriate, on a
regional basis, directly or through competent international organizations,
in formulating and elaborating international rules, standards and
recommended practices and procedures consistent with this Convention,
for the protection and preservation of the marine environment, taking into
account characteristic regional features. HEcIDa

In fine, the relevance of UNCLOS provisions to the present controversy is

beyond dispute. Although the said treaty upholds the immunity of warships from
the jurisdiction of Coastal States while navigating the latter's territorial sea, the
flag States shall be required to leave the territorial sea immediately if they flout
the laws and regulations of the Coastal State, and they will be liable for damages
caused by their warships or any other government vessel operated for non-
commercial purposes under Article 31.
Petitioners argue that there is a waiver of immunity from suit found in the VFA.
Likewise, they invoke federal statutes in the US under which agencies of the US
have statutorily waived their immunity to any action. Even under the common law
tort claims, petitioners asseverate that the US respondents are liable for
negligence, trespass and nuisance.
We are not persuaded.
The VFA is an agreement which defines the treatment of United States troops
and personnel visiting the Philippines to promote "common security interests"
between the US and the Philippines in the region. It provides for the guidelines to
govern such visits of military personnel, and further defines the rights of the
United States and the Philippine government in the matter of criminal jurisdiction,
movement of vessel and aircraft, importation and exportation of equipment,
materials and supplies. 36 The invocation of US federal tort laws and even
common law is thus improper considering that it is the VFA which governs
disputes involving US military ships and crew navigating Philippine waters in
pursuance of the objectives of the agreement.
As it is, the waiver of State immunity under the VFA pertains only to criminal
jurisdiction and not to special civil actions such as the present petition for
issuance of a writ of Kalikasan. In fact, it can be inferred from Section 17, Rule 7
of the Rules that a criminal case against a person charged with a violation of an
environmental law is to be filed separately:
SEC. 17. Institution of separate actions. — The filing of a petition for the
issuance of the writ of kalikasan shall not preclude the filing of separate
civil, criminal or administrative actions.
IEHSDA

In any case, it is our considered view that a ruling on the application or non-
application of criminal jurisdiction provisions of the VFA to US personnel who
may be found responsible for the grounding of the USS Guardian, would be
premature and beyond the province of a petition for a writ of Kalikasan. We also
find it unnecessary at this point to determine whether such waiver of State
immunity is indeed absolute. In the same vein, we cannot grant damages which
have resulted from the violation of environmental laws. The Rulesallows the
recovery of damages, including the collection of administrative fines under
R.A. No. 10067, in a separate civil suit or that deemed instituted with the criminal
action charging the same violation of an environmental law. 37
Section 15, Rule 7 enumerates the reliefs which may be granted in a petition for
issuance of a writ of Kalikasan, to wit:
SEC. 15. Judgment. — Within sixty (60) days from the time the petition
is submitted for decision, the court shall render judgment granting or
denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist from
committing acts or neglecting the performance of a duty in violation of
environmental laws resulting in environmental destruction or damage;
(b) Directing the respondent public official, government agency, private
person or entity to protect, preserve, rehabilitate or restore the
environment;
(c) Directing the respondent public official, government agency, private
person or entity to monitor strict compliance with the decision and orders
of the court;
(d) Directing the respondent public official, government agency, or
private person or entity to make periodic reports on the execution of the
final judgment; and
(e) Such other reliefs which relate to the right of the people to a balanced
and healthful ecology or to the protection, preservation, rehabilitation or
restoration of the environment, except the award of damages to
individual petitioners. (Emphasis supplied.)
We agree with respondents (Philippine officials) in asserting that this petition has
become moot in the sense that the salvage operation sought to be enjoined or
restrained had already been accomplished when petitioners sought recourse
from this Court. But insofar as the directives to Philippine respondents to protect
and rehabilitate the coral reef structure and marine habitat adversely affected by
the grounding incident are concerned, petitioners are entitled to these reliefs
notwithstanding the completion of the removal of theUSS Guardian from the coral
reef.
However, we are mindful of the fact that the US and Philippine governments both
expressed readiness to negotiate and discuss the matter of compensation for the
damage caused by the USS Guardian. The US Embassy has also declared it is
closely coordinating with local scientists and experts in assessing the extent of
the damage and appropriate methods of rehabilitation.
Exploring avenues for settlement of environmental cases is not proscribed by
the Rules. As can be gleaned from the following provisions, mediation and
settlement are available for the consideration of the parties, and which dispute
resolution methods are encouraged by the court, to wit:
RULE 3
xxx xxx xxx
SEC. 3. Referral to mediation. — At the start of the pre-trial conference,
the court shall inquire from the parties if they have settled the dispute;
otherwise, the court shall immediately refer the parties or their counsel, if
authorized by their clients, to the Philippine Mediation Center (PMC) unit
for purposes of mediation. If not available, the court shall refer the case
to the clerk of court or legal researcher for mediation.CSTDIE

Mediation must be conducted within a non-extendible period of thirty (30)

days from receipt of notice of referral to mediation.
The mediation report must be submitted within ten (10) days from the
expiration of the 30-day period.
SEC. 4. Preliminary conference. — If mediation fails, the court will
schedule the continuance of the pre-trial. Before the scheduled date of
continuance, the court may refer the case to the branch clerk of court for
a preliminary conference for the following purposes:
(a) To assist the parties in reaching a settlement;
xxx xxx xxx
SEC. 5. Pre-trial conference; consent decree. — The judge shall put the
parties and their counsels under oath, and they shall remain under oath
in all pre-trial conferences.
The judge shall exert best efforts to persuade the parties to arrive at a
settlement of the dispute. The judge may issue a consent decree
approving the agreement between the parties in accordance with law,
morals, public order and public policy to protect the right of the people to
a balanced and healthful ecology.
xxx xxx xxx
SEC. 10. Efforts to settle. — The court shall endeavor to make the
parties to agree to compromise or settle in accordance with law at any
stage of the proceedings before rendition of judgment. (Underscoring
supplied.)
The Court takes judicial notice of a similar incident in 2009 when a guided-missile
cruiser, the USS Port Royal, ran aground about half a mile off the Honolulu
Airport Reef Runway and remained stuck for four days. After spending $6.5
million restoring the coral reef, the US government was reported to have paid the
State of Hawaii $8.5 million in settlement over coral reef damage caused by the
grounding. 38 aSIAHC

To underscore that the US government is prepared to pay appropriate

compensation for the damage caused by the USS Guardiangrounding, the US
Embassy in the Philippines has announced the formation of a US interdisciplinary
scientific team which will "initiate discussions with the Government of the
Philippines to review coral reef rehabilitation options in Tubbataha, based on
assessments by Philippine-based marine scientists." The US team intends to
"help assess damage and remediation options, in coordination with the
Tubbataha Management Office, appropriate Philippine government entities, non-
governmental organizations, and scientific experts from Philippine
universities." 39
A rehabilitation or restoration program to be implemented at the cost of the
violator is also a major relief that may be obtained under a judgment rendered in
a citizens' suit under the Rules, viz.:
RULE 5
SECTION 1. Reliefs in a citizen suit. — If warranted, the court may
grant to the plaintiff proper reliefs which shall include the protection,
preservation or rehabilitation of the environment and the payment of
attorney's fees, costs of suit and other litigation expenses. It may also
require the violator to submit a program of rehabilitation or restoration of
the environment, the costs of which shall be borne by the violator, or to
contribute to a special trust fund for that purpose subject to the control of
the court.
In the light of the foregoing, the Court defers to the Executive Branch on the
matter of compensation and rehabilitation measures through diplomatic
channels. Resolution of these issues impinges on our relations with another
State in the context of common security interests under the VFA. It is settled that
"[t]he conduct of the foreign relations of our government is committed by the
Constitution to the executive and legislative — "the political" — departments of
the government, and the propriety of what may be done in the exercise of this
political power is not subject to judicial inquiry or decision." 40
On the other hand, we cannot grant the additional reliefs prayed for in the petition
to order a review of the VFA and to nullify certain immunity provisions thereof.
As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora, 41 the
VFA was duly concurred in by the Philippine Senate and has been recognized as
a treaty by the United States as attested and certified by the duly authorized
representative of the United States government. The VFA being a valid and
binding agreement, the parties are required as a matter of international law to
abide by its terms and provisions. 42 The present petition under the Rules is not
the proper remedy to assail the constitutionality of its provisions.
WHEREFORE, the petition for the issuance of the privilege of the Writ
of Kalikasan is hereby DENIED.
No pronouncement as to costs.
SO ORDERED.
Carpio, Velasco, Jr., Leonardo-de Castro, Brion, Peralta, Bersamin, Del Castillo,
Perez, Reyes and Perlas-Bernabe, JJ., concur.
Sereno, C.J., see concurring opinion.
Leonen, J., see separate concurring opinion.
Mendoza, * J., is on official leave.
Jardeleza, ** J., took no part.
||| (Arigo v. Swift, G.R. No. 206510, [September 16, 2014])
 [G.R. No. 180771. April 21, 2015.]

RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCA

PE TAÑON STRAIT, e.g.,TOOTHED WHALES, DOLPHINS,
PORPOISES, AND OTHER CETACEAN SPECIES, Joined in
and Represented herein by Human Beings Gloria Estenzo
Ramos and Rose-Liza Eisma-Osorio, In Their Capacity as
Legal Guardians of the Lesser Life-Forms and as Responsible
Stewards of God's Creations, petitioners, vs. SECRETARY
ANGELO REYES, in his capacity as
Secretary ofthe Department of Energy (DOE),SECRETARY
JOSE L. ATIENZA, in his capacity as
Secretary of the Department ofEnvironment and Natural
Resources (DENR),LEONARDO R. SIBBALUCA, DENR
Regional Director-Region VII and in his capacity as
Chairperson of the Tañon Strait Protected Seascape Managem
ent Board, Bureau of Fisheries and Aquatic Resources
(BFAR),DIRECTOR MALCOLM J. SARMIENTO, JR.,BFAR
Regional Director for Region VII ANDRES M. BOJOS, JAPAN
PETROLEUM EXPLORATION CO.,LTD. (JAPEX),as
represented by its Philippine Agent, SUPPLY OILFIELD
SERVICES, INC., respondents.

[G.R. No. 181527. April 21, 2015.]

CENTRAL VISAYAS FISHERFOLK DEVELOPMENT CENTER

(FIDEC),CERILO D. ENGARCIAL, RAMON YANONG,
FRANCISCO LABID, in their personal capacity and as
representatives of the SUBSISTENCE
FISHERFOLKS OF THEMUNICIPALITIES OF ALOGUINSAN
AND PINAMUNGAJAN, CEBU, AND THEIR FAMILIES,
AND THE PRESENT AND FUTURE
GENERATIONS OF FILIPINOS WHOSE RIGHTS ARE
SIMILARLY AFFECTED,petitioners,vs. SECRETARY
ANGELOREYES, in his capacity as
Secretary of the Department of Energy (DOE),JOSE L.
ATIENZA, in his capacity as
Secretary of the Department of Environment and Natural
Resources (DENR),LEONARDO R. SIBBALUCA, in his
capacity as DENR Regional Director-Region VII and as
Chairperson of the Tañon Strait Protected SeascapeManagem
ent Board, ALAN ARRANGUEZ, in his capacity as Director —
 Environmental Management Bureau-Region VII, DOE Regional
Director for Region VIII 1 ANTONIO LABIOS, JAPAN
PETROLEUM EXPLORATION CO.,LTD. (JAPEX),as
represented by its Philippine Agent, SUPPLY OILFIELD
SERVICES, INC., respondents.

DECISION

LEONARDO-DE CASTRO, J : p

Before Us are two consolidated Petitions filed under Rule

65 of the 1997 Rules of Court, concerning Service Contract No. 46 (SC-
46),which allowed the exploration, development, and exploitation of petroleum
resources within Tañon Strait, a narrow passageof water situated
between the islands of Negros and Cebu. 2
The Petition docketed as G.R. No. 180771 is an original Petition
for Certiorari,Mandamus, and Injunction, which seeks to enjoin respondents
from implementing SC-46 and to have it nullified for willful and gross
violation of the 1987 Constitution and certain international and municipal
laws. 3
Likewise, the Petition docketed as G.R. No. 181527 is an original
Petition for Certiorari,Prohibition, and Mandamus,which seeks to
nullify the Environmental Compliance Certificate (ECC) issued
by the Environmental Management Bureau
(EMB) of theDepartment of Environment and Natural Resources
(DENR),Region VII in connection with SC-46; to prohibit respondents from
implementing SC-46; and to compel public respondents to provide petitioners
access to the pertinent documents involving theTañon Strait Oil Exploration
Project. 4
ANTECEDENT FACTS
AND PROCEEDINGS
Petitioners in G.R. No. 180771, collectively referred to
as the "Resident Marine Mammals" in the petition, are the toothed whales,
dolphins, porpoises, and other cetacean species, which inhabit the waters in
and around the Tañon Strait. They are joined by Gloria Estenzo Ramos
(Ramos) and Rose-Liza Eisma-Osorio (Eisma-Osorio) as their legal guardians
and as friends (to be collectively known as "the Stewards") who allegedly
empathize with, and
seek the protection of, the aforementioned marine species. Also impleaded as
an unwilling co-petitioner is former President Gloria Macapagal-Arroyo, for her
express declaration and undertaking in the ASEAN Charter to
protect the Tañon Strait, among others. 5
Petitioners in G.R. No. 181527 are the Central Visayas Fisherfolk
Development Center (FIDEC),a non-stock, non-profit, non-governmental
organization, established for the welfare of the marginal fisherfolk in Region
VII; and Cerilo D. Engarcial (Engarcial),Ramon Yanong (Yanong) and
Francisco Labid (Labid),in their personal capacities and as
representatives of thesubsistence fisherfolk of the municipalities of Aloguinsan
and Pinamungajan, Cebu.
Named as respondents in both petitions are the late Angelo T. Reyes,
as then Secretary of the Department of Energy (DOE);Jose L. Atienza, as
then Secretary of the DENR; Leonardo R. Sibbaluca, as then DENR-Regional
Director for Region VII and
Chairman of the Tañon Strait Protected Seascape Management Board; Japan
Petroleum Exploration Co.,Ltd. (JAPEX),a company organized and existing
under the laws of Japan with a Philippine branch office; and Supply Oilfield
Services, Inc. (SOS),as the alleged Philippine agent of JAPEX.
In G.R. No. 181527, the following were impleaded as additional public
respondents: Alan C. Arranguez (Arranguez) and Antonio Labios (Labios),in
their capacities as then Director of the EMB, Region VII and then Regional
Director of the DOE, Region VII, respectively. 6
On June 13, 2002, the Government of the Philippines, acting
through the DOE, entered into a Geophysical Survey and Exploration
Contract-102 (GSEC-102) with JAPEX. This contract involved geological and
geophysical studies of the Tañon Strait. Thestudies included surface geology,
sample analysis, and reprocessing of seismic and magnetic data. JAPEX,
assisted by DOE, also conducted geophysical and satellite surveys, as well as
oil and gas sampling in Tañon Strait. 7
On December 21, 2004, DOE and JAPEX formally converted GSEC-
102 into SC-46 for the exploration, development, and production of petroleum
resources in a block covering approximately 2,850 square kilometers
offshore the Tañon Strait. 8
From May 9 to 18, 2005, JAPEX conducted seismic surveys in and
around the Tañon Strait. A multi-channel sub-bottom profiling covering
approximately 751 kilometers was also done to determine the area's
underwater composition. 9 CAIHTE

JAPEX committed to drill one exploration well during the second sub-
phase of the project. Since the well was to be drilled
inthe marine waters of Aloguinsan and Pinamungajan,
where the Tañon Strait was declared a protected seascape in 1988, 10 JAPEX
agreed to comply with the Environmental Impact Assessment requirements
pursuant to Presidential Decree No. 1586, entitled "Establishing an
Environmental Impact Statement System, Including Other Environmental
Management Related Measures and for Other Purposes." 11
On January 31, 2007, the Protected Area Management
Board 12 of the Tañon Strait (PAMB-Tañon Strait) issued Resolution No.
2007-001, 13 wherein it adopted the Initial Environmental Examination (IEE)
commissioned by JAPEX, and favorably
recommendedthe approval of JAPEX's application for an ECC.
On March 6, 2007, the EMB of DENR Region VII granted an ECC
to the DOE and JAPEX for the offshore oil and gas exploration project
in Tañon Strait. 14 Months later, on November 16, 2007, JAPEX began to drill
an exploratory well, with a depth of 3,150 meters, near Pinamungajan town
in the western Cebu Province. 15 This drilling lasted until February 8, 2008. 16
It was in view of the foregoing state of affairs that petitioners applied to
this Court for redress, via two separate original petitions both dated December
17, 2007, wherein they commonly seek that respondents be enjoined from
implementing SC-46 for, among others, violation of the 1987 Constitution.
On March 31, 2008, SOS filed a Motion to Strike 17 its name as a
respondent on the ground that it is not the Philippine agentof JAPEX. In
support of its motion, it submitted the branch office
application of JAPEX, 18 wherein the latter's resident agent was clearly
identified. SOS claimed that it had acted as a mere logistics contractor for
JAPEX in its oil and gas exploration activities in thePhilippines.
Petitioners Resident Marine Mammals and Stewards opposed SOS's
motion on the ground that it was premature, it was pro-forma,and it was
patently dilatory. They claimed that SOS admitted that "it is in law a (sic) privy
to JAPEX" since it did the drilling and other exploration activities
in Tañon Strait under the instructions of its principal, JAPEX. They argued that
it would be premature to drop SOS as a party as JAPEX had not yet been
joined in the case; and that it was "convenient" for SOS to ask the Court to
simply drop its name from the parties when what it should have done was to
either notify or ask JAPEX to join it in its motion to enable proper substitution.
At this juncture, petitioners Resident Marine Mammals and Stewards also
asked the Court to implead JAPEX Philippines as a co-respondent or as a
substitute for its parent company, JAPEX. 19
On April 8, 2008, the Court resolved to
consolidate G.R. No. 180771 and G.R. No. 181527.
 On May 26, 2008, the FIDEC manifested 20 that they were adopting in
toto the Opposition to Strike with Motion to Implead filed by
petitioners Resident Marine Mammals and Stewards in G.R. No. 180771.
On June 19, 2008, public respondents filed their Manifestation 21 that they
were not objecting to SOS's Motion to Strike as it was not JAPEX's residentagent. JAPEX during all this
time, did not file any comment at all.

Thus, on February 7, 2012, this Court, in an effort to ensure that

all the parties were given ample chance and opportunity to answer the issues
herein, issued a Resolution directing the Court's process servicing unit to
again serve the parties with a copy ofthe September 23, 2008
Resolution of the Court, which gave due course to the petitions
in G.R. Nos. 180771 and 181527, and which required the parties to submit
their respective memoranda. The February 7, 2012 Resolution 22 reads as
follows:
G.R. No. 180771 (Resident Marine Mammals of the Protected S
eascape Tañon Strait, e.g.,Toothed Whales, Dolphins, Porpoises and
Other Cetacean Species, et al. vs. Hon. Angelo Reyes, in his capacity
as Secretary of the Department of Energy, et al.)
and G.R. No. 181527 (Central Visayas Fisherfolk Development Center,
et al. vs. Hon. Angelo Reyes, et al.).— The Court Resolved to
direct the Process Servicing Unit to RE-SEND the resolution dated
September 23, 2008 to the following parties and counsel, together with
this resolution:
Atty. Aristeo O. Cariño 20th Floor Pearlbank Centre
Counsel for Respondent Supply 146 Valero Street
Oilfield Services, Inc. Salcedo Village, Makati City

JAPEX Philippines Ltd. 20th Floor Pearlbank Centre

146 Valero Street
Salcedo Village, Makati City

JAPEX Philippines Ltd. 19th Floor Pearlbank Centre

c/o Atty. Maria Farah Z.G. 146 Valero Street
Nicolas-Suchianco Salcedo Village, Makati City

Atty. Maria Farah Z.G. Suite 2404 Discovery Centre

Nicolas-Suchianco 25 ADB Avenue
Resident Agent of JAPEX Ortigas Center, Pasig City
Philippines Ltd.

This Resolution was personally served to the above parties,

at the above addresses on February 23, 2012. On March 20, 2012, JAPEX
Philippines, Ltd. (JAPEX PH),by way of special appearance, filed a Motion to
Admit 23 its Motion for Clarification, 24 wherein JAPEX PH requested to be
clarified as to whether or not it should deem the February 7, 2012 Resolution
as this Court's Order of its inclusion in the case, as it has not been impleaded.
It also alleged that JAPEX PH had already stopped exploration activities
in theTañon Strait way back in 2008, rendering this case moot.
On March 22, 2012, JAPEX PH, also by special appearance, filed a
Motion for Extension of Time 25 to file its Memorandum. It stated that since it
received the February 7, 2012 Resolution on February 23, 2012, it had until
March 22, 2012 to file its Memorandum. JAPEX PH then asked for an
additional thirty days, supposedly to give this Court some time to consider its
Motion for Clarification.
On April 24, 2012, this Court issued a Resolution 26 granting JAPEX
PH's Motion to Admit its Motion for Clarification. This Court, addressing
JAPEX PH's Motion for Clarification, held:
With regard to its Motion for Clarification (By Special
Appearance) dated March 19, 2012, this Court considers JAPEX
Philippines, Ltd. as a real party-in-interest in these cases. Under
Section 2, Rule 3 of the 1997 Rules of Court, a real party-in-interest
is the party who stands to be benefited or injured by the judgment
in the suit, or the party entitled to the avails of thesuit. Contrary to
JAPEX Philippines, Ltd.'s allegation that it is a completely distinct
corporation, which should not be confused with JAPEX Company, Ltd.,
JAPEX Philippines, Ltd. is a mere branch office, established by JAPEX
Company, Ltd. for the purpose ofcarrying out the latter's business
transactions here in the Philippines. Thus, JAPEX Philippines, Ltd.,
has no separate personality from its mother foreign
corporation, the party impleaded in this case.
Moreover, Section 128 of the Corporation Code provides
for the responsibilities and duties of a resident agent of a foreign
corporation:
SECTION 128. Resident agent;
service of process.— The Securities and Exchange
Commission shall require as a condition precedent
to the issuance of the license to transact business
in the Philippines by any foreign corporation that such
corporation file with the Securities and Exchange
Commission a written power of attorney designating
some person who must be a resident of the Philippines,
on whom any summons and other legal processes may
be served in all actions or other legal proceedings
against such corporation, and consenting that service
upon such resident agent shall be admitted and held as
valid as if served upon the duly authorized
 officers ofthe foreign corporation at its home office. Any
such foreign corporation shall likewise execute and file
with theSecurities and Exchange Commission an
agreement or stipulation, executed by the proper
authorities of said corporation, in form and substance as
follows:
"The (name of foreign corporation) does hereby
stipulate and agree, in consideration of its being granted
bythe Securities and Exchange Commission a license to
transact business in the Philippines, that if at any time
said corporation shall cease to transact business
in the Philippines, or shall be without any resident agent
in thePhilippines on whom any summons or other legal
processes may be served, then in any action or
proceeding arising out of any business or transaction
which occurred in the Philippines, service of any
summons or other legal process may be made
upon the Securities and Exchange Commission and that
such service shall have the same force and effect as if
made upon the duly-authorized officers of the corporation
at its home office."
Whenever such service of summons or other
process shall be made upon the Securities and
Exchange Commission, the Commission shall, within ten
(10) days thereafter, transmit by mail a copy of such
summons or other legal process to the corporation at its
home or principal office. The sending of such copy
by the Commission shall be a necessary part of and shall
complete such service. All expenses incurred
by the Commission for such service shall be paid in
advance by the party at whose instance the service is
made.
In case of a
change of address of the resident agent, it shall be his or
its duty to immediately notify in writingthe Securities and
Exchange Commission of the new address.
It is clear from the foregoing provision
that the function of a resident agent is to receive summons or legal
processes that may be served in all actions or other legal proceedings
against the foreign corporation. These cases have been prosecuted
in thename of JAPEX Company, Ltd.,and JAPEX Philippines Ltd.,as its
branch office and resident agent, had been receiving the various
resolutions from this Court, as evidenced by Registry Return Cards
signed by its representatives.
 And in the interest of justice, this Court resolved to grant JAPEX PH's
motion for extension of time to file its memorandum, and was given
until April 21, 2012, as prayed for, within which to comply
with the submission. 27
Without filing its Memorandum, JAPEX PH, on May 14, 2012, filed a
motion, asking this Court for an additional thirty days to file its Memorandum,
to be counted from May 8, 2012. It justified its request by claiming that this
Court's April 24, 2012 Resolution was issued past its requested deadline for
filing, which was on April 21, 2012. 28
On June 19, 2012, this Court denied JAPEX PH's second request for
additional time to file its Memorandum and dispensed with such filing.
Since petitioners had already filed their respective memoranda, 29 and
public respondents had earlier filed a Manifestation 30that they were adopting
their Comment dated March 31, 2008 as their memorandum, this Court
submitted the case for decision.
Petitioners' Allegations
Protesting the adverse ecological impact of JAPEX's oil exploration
activities in the Tañon Strait, petitioners Resident MarineMammals and
Stewards aver that a study made after the seismic survey showed that the fish
catch was reduced drastically by 50 to 70 percent. They claim that
before the seismic survey, the average harvest per day would be from 15 to
20 kilos; but after theactivity, the fisherfolk could only catch an average of 1 to
2 kilos a day. They attribute this "reduced fish catch"
to the destruction ofthe "payao," also known as the "fish aggregating device"
or "artificial reef." 31 Petitioners Resident Marine Mammals and Stewards also
impute the incidences of "fish kill" 32 observed by some of the local fisherfolk
to the seismic survey. And they further allege thatthe ECC obtained by private
respondent JAPEX is invalid because public consultations and discussions
with the affected stakeholders, a pre-requisite to the issuance of the ECC,
were not held prior to the ECC's issuance.
In its separate petition, petitioner FIDEC confirms
petitioners Resident Marine Mammals and Stewards' allegations of reduced
fish catch and lack of public consultations or discussions with the fisherfolk
and other stakeholders prior to the issuance of the ECC. Moreover, it alleges
that during the seismic surveys and drilling, it was barred from entering and
fishing within a 7-kilometer radius from the point where the oilrig was located,
an area greater than the 1.5-kilometer radius "exclusion zone" stated
in the IEE. 33 It also agrees in the allegation that public respondents DENR
and EMB abused their discretion when they issued an ECC to public
respondent DOE and private respondent JAPEX without ensuring the strict
compliance with the procedural and substantive requirements
under the Environmental Impact Assessment system, the Fisheries Code, and
their implementing rules and regulations. 34 It further claims that despite
several requests for copies of all the documents pertaining to the project
in TañonStrait, only copies of the PAMB-Tañon Strait Resolution and the ECC
were given to the fisherfolk. 35
HEITAD

Public Respondents' Counter-Allegations

Public respondents, through the Solicitor General, contend that
petitioners Resident Marine Mammals and Stewards have nolegal standing to
file the present petition; that SC-46 does not violate the 1987
Constitution and the various laws cited in thepetitions; that the ECC was
issued in accordance with existing laws and regulations; that public
respondents may not be compelled by mandamus to furnish petitioners
copies of all documents relating to SC-46; and that all the petitioners failed to
show that they are entitled to injunctive relief. They further contend
that the issues raised in these petitions have been rendered moot and
academic by the fact that SC-46 had been mutually terminated by the parties
thereto effective June 21, 2008. 36
ISSUES
The following are the issues posited by
petitioners Resident Marine Mammals and Stewards in G.R. No. 180771:
I. WHETHER OR NOT PETITIONERS HAVE LOCUS STANDI TO
FILE THE INSTANT PETITION;
II. WHETHER OR NOT SERVICE CONTRACT NO. 46 IS
VIOLAT[IVE] OF THE 1987 PHILIPPINE CONSTITUTION AND
STATUTES;
III. WHETHER OR NOT THE ON-GOING EXPLORATION AND
PROPOSED EXPLOITATION FOR OIL AND NATURAL GAS AT,
AROUND, AND
UNDERNEATH THE MARINE WATERS OF THE TAÑON STRAI
T PROTECTED SEASCAPE IS INCONSISTENT
WITH THEPHILIPPINE COMMITMENTS TO INTERNATIONAL
ENVIRONMENTAL LAWS AND INSTRUMENTS; AND
IV. WHETHER OR NOT THE ISSUANCE OF THE ENVIRONMENTAL
COMPLIANCE CERTIFICATE (ECC) IN ENVIRONMENTALLY
CRITICAL AREAS AND HABITATS OF MARINE WILDLIFE AND
ENDANGERED SPECIES IS LEGAL AND PROPER. 37
Meanwhile, in G.R. No. 181527, petitioner FIDEC
presented the following issues for our consideration:
 I. WHETHER OR NOT SERVICE CONTRACT NO. 46 EXECUTED
BETWEEN RESPONDENTS DOE AND JAPEX SHOULD BE
NULLIFIED AND SET ASIDE FOR BEING IN DIRECT
VIOLATION OF SPECIFIC PROVISIONS OF THE 1987
PHILIPPINE CONSTITUTION AND APPLICABLE LAWS;
II. WHETHER OR NOT THE OFF-SHORE OIL EXPLORAT[I]ON
CONTEMPLATED UNDER SERVICE CONTRACT NO. 46 IS
LEGALLY PERMISSIBLE WITHOUT A LAW BEING DULY
PASSED EXPRESSLY FOR THE PURPOSE;
III. WHETHER OR NOT THE OIL EXPLORATION BEING CONDUCTED
WITHIN THE TAÑON STRAIT PROTECTED SEASCAPE VIOLA
TESTHE RIGHTS AND LEGAL PROTECTION GRANTED TO
PETITIONERS UNDER THE CONSTITUTION AND
APPLICABLE LAWS.
IV. WHETHER OR NOT THE ISSUANCE OF THE ENVIRONMENTAL
COMPLIANCE CERTIFICATE (ECC) FOR SUCH AN
ENVIRONMENTALLY CRITICAL PROJECT INSIDE AN
ENVIRONMENTALLY CRITICAL AREA SUCH
AS THE TAÑON STRAITPROTECTED SEASCAPE CONFORME
D TO LAW AND EXISTING RULES AND REGULATIONS
ON THE MATTER.
V. WHETHER OR NOT THE RESPONDENTS MAY BE COMPELLED
BY MANDAMUS TO FURNISH PETITIONERS WITH
COPIES OF THEDOCUMENTS PERTAINING
TO THE TAÑON STRAIT OIL EXPLORATION PROJECT. 38
In these consolidated petitions, this Court has determined
that the various issues raised by the petitioners may be condensed into two
primary issues:
I. Procedural Issue: Locus Standi of the Resident Marine Mammals and
Stewards, petitioners in G.R. No. 180771; and
II. Main Issue: Legality of Service Contract No. 46.
DISCUSSION
At the outset, this Court makes clear that the "'moot and academic
principle' is not a magical formula that can automatically dissuade the courts
in resolving a case." Courts have decided cases otherwise moot and
academic under the following exceptions:
1) There is a grave violation of the Constitution;
2) The exceptional character of the situation and the paramount public
interest is involved;
 3) The constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public; and
4) The case is capable of repetition yet evading review. 39
In this case, despite the termination of SC-46, this Court deems it
necessary to resolve these consolidated petitions as almost
all of the foregoing exceptions are present in this case. Both petitioners allege
that SC-46 is violative of the Constitution, theenvironmental and livelihood
issues raised undoubtedly affect the public's interest, and the respondents'
contested actions are capable of repetition.
Procedural Issues
Locus Standi of Petitioners Resident Marine
Mammals and Stewards
The Resident Marine Mammals, through the Stewards, "claim" that they
have the legal standing to file this action since they stand to be benefited or
injured by the judgment in this suit. 40 Citing Oposa v. Factoran, Jr.,41 they
also assert their right to sue forthe faithful performance of international and
municipal environmental laws created in their favor and for their benefit. In this
regard, they propound that they have the right to demand that they be
accorded the benefits granted to them in multilateral international instruments
that the Philippine Government had signed,
under the concept of stipulation pour autrui.42
For their part, the Stewards contend that there should
be no question of their right to represent the Resident MarineMammals as
they have stakes in the case as forerunners of a campaign to build awareness
among the affected residents of TañonStrait and as
stewards of the environment since the primary steward, the Government, had
failed in its duty to protect theenvironment pursuant to the public trust
doctrine. 43
Petitioners Resident Marine Mammals and Stewards also aver that this
Court may lower the benchmark in locus standi as an exercise of epistolary
jurisdiction. 44
In opposition, public respondents argue
that the Resident Marine Mammals have no standing because Section 1, Rule
3 of theRules of Court requires parties to an action to be either natural or
juridical persons, viz.:
Section 1. Who may be parties; plaintiff and defendant.— Only
natural or juridical persons, or entities authorized by law may be
parties in a civil action. The term "plaintiff" may refer to the claiming
party, the counter-claimant, the cross-claimant, orthe third (fourth,
etc.)-party plaintiff. The term "defendant" may refer to the original
 defending party, the defendant in a counterclaim, the cross-defendant,
or the third (fourth, etc.)-party defendant.
The public respondents also contest the applicability of Oposa,pointing
out that the petitioners therein were all natural persons, albeit some of them
were still unborn. 45ATICcS

As regards the Stewards, the public respondents likewise challenge

their claim of legal standing on the ground that they are representing animals,
which cannot be parties to an action. Moreover, the public respondents argue
that the Stewards are not thereal parties-in-interest for their failure to show
how they stand to be benefited or injured by the decision in this case. 46
Invoking the alter ego principle in political law, the public respondents
claim that absent any proof that former President Arroyo had
disapproved of their acts in entering into and implementing SC-46, such acts
remain to be her own. 47
The public respondents contend that since
petitioners Resident Marine Mammals and Stewards' petition was not brought
inthe name of a real party-in-interest, it should be dismissed for failure to state
a cause of action. 48
The issue of whether or not animals or even inanimate objects should
be given legal standing in actions before courts of law is not new
in the field of animal rights and environmental law.
Petitioners Resident Marine Mammals and Stewards cited the 1972 United
States case Sierra Club v. Rogers C.B. Morton,49 wherein Justice William O.
Douglas, dissenting to the conventional thought on legal standing, opined:
The critical question of "standing" would be simplified and also
put neatly in focus if we fashioned a federal rule that allowed
environmental issues to be litigated before federal agencies or federal
courts in the name of the inanimate object about to be despoiled,
defaced, or invaded by roads and bulldozers and where injury
is the subject of public outrage. ....
Inanimate objects are sometimes parties in litigation. A ship has
a legal personality, a fiction found useful for maritime
purposes. The corporation sole — a creature of ecclesiastical law — is
an acceptable adversary and large fortunes ride on its
cases. The ordinary corporation is a "person" for
purposes of the adjudicatory processes, whether it represents
proprietary, spiritual, aesthetic, or charitable causes.
So it should be as respects valleys, alpine meadows, rivers,
lakes, estuaries, beaches, ridges, groves of trees, swampland, or even
air that feels the destructive pressures of modern technology and
modern life. The river, for example, is the living symbol ofall the life it
 sustains or nourishes — fish, aquatic insects, water ouzels, otter,
fisher, deer, elk, bear, and all other animals, including man, who are
dependent on it or who enjoy it for its sight, its sound, or its
life. The river as plaintiff speaks for theecological unit of life that is
part of it. Those people who have a meaningful relation to that
body of water — whether it be a fisherman, a canoeist, a zoologist, or
a logger — must be able to speak for the values which the river
represents and which are threatened with destruction. 50 (Citations
omitted.)
The primary reason animal rights advocates and environmentalists
seek to give animals and inanimate objects standing is due to the need to
comply with the strict requirements in bringing a suit to court. Our own 1997
Rules of Court demand that parties to a suit be either natural or juridical
persons, or entities authorized by law. It further necessitates the action to be
brought in thename of the real party-in-interest, even if filed by a
representative, viz.:
Rule 3
Parties to Civil Actions
Section 1. Who may be parties; plaintiff and defendant.— Only
natural or juridical persons, or entities authorized by law may be
parties in a civil action. The term "plaintiff" may refer to the claiming
party, the counter-claimant, the cross-claimant, orthe third (fourth,
etc.)-party plaintiff. The term "defendant" may refer to the original
defending party, the defendant in a counterclaim, the cross-defendant,
or the third (fourth, etc.)-party defendant.
Sec. 2. Parties in interest.— A real party in interest is the party
who stands to be benefited or injured by the judgment in thesuit,
or the party entitled to the avails of the suit. Unless otherwise
authorized by law or these Rules, every action must be prosecuted or
defended in the name of the real party in interest.
Sec. 3. Representatives as parties.— Where the action is
allowed to be prosecuted or defended by a representative or someone
acting in a fiduciary capacity, the beneficiary shall be included
in the title of the case and shall be deemed to be the real party in
interest. A representative may be a trustee of an express trust, a
guardian, an executor or administrator, or a party authorized by law or
these Rules. An agent acting in his own name and for the benefit of an
undisclosed principal may sue or be sued without joining the principal
except when the contract involves things belonging to the principal.
It had been suggested by animal rights advocates and
environmentalists that not only natural and juridical persons should be given
legal standing because of the difficulty for persons, who cannot show that they
by themselves are real parties-in-interests, to bring actions in
representation of these animals or inanimate objects. For this reason, many
environmental cases have been dismissed for failure of the petitioner to show
that he/she would be directly injured or affected by the outcome of the case.
However, in our jurisdiction, locus standi in environmental cases has been
given a more liberalized approach. While developments in Philippine legal
theory and jurisprudence have not progressed as far as Justice Douglas's
paradigm of legal standing for inanimate objects, the current trend moves
towards simplification of procedures and facilitating court access in
environmental cases.
Recently, the Court passed the landmark Rules of Procedure for
Environmental Cases,51 which allow for a "citizen suit," and permit any
Filipino citizen to file an action before our courts for violations of our
environmental laws:
SEC. 5. Citizen suit.— Any Filipino citizen in
representation of others, including minors or generations yet
unborn, may file an action to enforce rights or obligations under
environmental laws.Upon the filing of a citizen suit, the court shall
issue an order which shall contain a brief
description of the cause of action and the reliefs prayed for, requiring
all interested parties to manifest their interest to intervene in the case
within fifteen (15) days from notice thereof. The plaintiff may
publish theorder once in a newspaper of a general circulation
in the Philippines or furnish all affected barangays copies of said order.
Citizen suits filed under R.A. No. 8749 and R.A. No. 9003 shall
be governed by their respective provisions. 52 (Emphasis ours.)
Explaining the rationale for this rule, the Court, in the Annotations
to the Rules of Procedure for Environmental Cases, commented:
Citizen suit.To further
encourage the protection of the environment, the Rules enable litigants
enforcing environmental rights to file their cases as citizen suits. This
provision liberalizes standing for all cases filed enforcing environmental
laws and collapses the traditional rule on personal and direct
interest, on the principle that humans are stewards of nature.The
terminology of the text reflects the doctrine first enunciated in Oposa v.
Factoran,insofar as it refers to minors and generations yet
unborn. 53 (Emphasis supplied, citation omitted.)
Although this petition was filed in 2007, years
before the effectivity of the Rules of Procedure for Environmental Cases, it
has been consistently held that rules of procedure "may be retroactively
applied to actions pending and undetermined at the time oftheir passage and
will not violate any right of a person who may feel that he is adversely
affected, inasmuch as there is no vested rights in rules of procedure." 54
 Elucidating on this doctrine, the Court, in Systems Factors
Corporation v. National Labor Relations Commission 55 held that:
Remedial statutes or statutes relating to remedies or
modes of procedure, which do not create new or take away vested
rights, but only operate in furtherance of the remedy or
confirmation of rights already existing, do not come within the legal
conceptionof a retroactive law, or the general rule against retroactive
operation of statutes. Statutes regulating the procedure of the courts
will be construed as applicable to actions pending and undetermined
at the time of their passage. Procedural laws are retroactive in that
sense and to that extent. ....
Moreover, even before the Rules of Procedure for Environmental Cases
became effective, this Court had already taken a permissive position
on the issue of locus standi in environmental cases. In Oposa,we
allowed the suit to be brought in the name ofgenerations yet unborn "based
on the concept of intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned." 56 Furthermore, we said
that the right to a balanced and healthful ecology, a right that does not even
need to be stated in our Constitution as it is assumed to exist
from the inception of humankind, carries with it the correlative duty to refrain
from impairing the environment. 57 TIADCc

In light of the foregoing, the need to

give the Resident Marine Mammals legal standing has been eliminated by our
Rules, which allow any Filipino citizen, as a steward of nature, to bring a suit
to enforce our environmental laws. It is worth noting here thatthe Stewards
are joined as real parties in the Petition and not just in
representation of the named cetacean species. The Stewards, Ramos and
Eisma-Osorio, having shown in their petition that there may be possible
violations of laws concerning the habitat of theResident Marine Mammals, are
therefore declared to possess the legal standing to file this petition.
Impleading Former President Gloria Macapagal-Arroyo
as an Unwilling Co-Petitioner
Petitioners Stewards in G.R. No. 180771 impleaded as an unwilling
co-petitioner former President Gloria Macapagal-Arroyo for the following
reasons, which we quote:
Her Excellency Gloria Macapagal-Arroyo,also of legal age, Filipino
and resident of Malacañang Palace, Manila Philippines. Steward Gloria
Macapagal-Arroyo happens to be the incumbent
President of the Philippine Islands. She is personally impleaded in this
suit as an unwilling co-petitioner by reason of her express declaration
and undertaking under the recently signed ASEAN Charter to protect
Your Petitioners' habitat, among others. She is meantime dominated
 as an unwilling co-petitioner due to lack ofmaterial time in seeking her
signature and imprimatur hereof and due to possible legal
complications that may hereafter arise by reason of her official
relations with public respondents under the alter ego principle in
political law. 58
This is incorrect.
Section 10, Rule 3 of the Rules of Court provides:
Sec. 10. Unwilling co-plaintiff.— If the consent of any party who
should be joined as plaintiff can not be obtained, he may be made a
defendant and the reason therefor shall be stated in the complaint.
Under the foregoing rule, when the consent of a party who should be
joined as a plaintiff cannot be obtained, he or she may be made a party
defendant to the case. This will put the unwilling party
under the jurisdiction of the Court, which can properly implead him or her
through its processes. The unwilling party's name cannot be simply included
in a petition, without his or her knowledge and consent, as such would be a
denial of due process.
Moreover, the reason cited by the petitioners Stewards for including
former President Macapagal-Arroyo in their petition, is not sufficient to
implead her as an unwilling co-petitioner. Impleading the former President as
an unwilling co-petitioner, for an act she made
in the performance of the functions of her office, is contrary to the public policy
against embroiling the President in suits, "to
assure the exercise of Presidential duties and functions free from any
hindrance or distraction, considering that being the Chief
Executive of the Government is a job that, aside from requiring all of the office
holder's time, also demands undivided attention." 59
Therefore, former President Macapagal-Arroyo cannot be impleaded as
one of the petitioners in this suit. Thus, her name is stricken off the title of this
case.
Main Issue:
Legality of Service Contract No. 46
Service Contract No. 46 vis-à-vis
Section 2, Article XII of the
1987 Constitution
Petitioners maintain that SC-46 transgresses the Jura Regalia Provision
or paragraph 1, Section 2, Article XII of the 1987 Constitution because JAPEX
is 100% Japanese-owned. 60 Furthermore, the FIDEC asserts that SC-46
cannot be considered as a technical and financial assistance agreement
validly executed under paragraph 4 of the same provision. 61 The petitioners
claim thatLa Bugal-B'laan Tribal Association, Inc. v. Ramos 62 laid
down the guidelines for a valid service contract, one of which is that there
must exist a general law for oil exploration before a service contract may be
entered into by the Government. The petitioners posit that the service contract
in La Bugal is presumed to have complied with the requisites of (a) legislative
enactment of a general law after the effectivity of the 1987 Constitution (such
as Republic Act No. 7942, or the Philippine Mining Law of 1995, governing
mining contracts) and (b) presidential notification. The petitioners thus allege
that the ruling in La Bugal, which involved mining contracts under Republic
Act No. 7942, does not apply in this case. 63 The petitioners also argue
that Presidential Decree No. 87 or the Oil Exploration and Development
Act of 1972 cannot legally justify SC-46 as it is deemed to have been
repealed by the 1987 Constitution and subsequent laws, which enunciate new
policies concerning the environment. 64 In addition, petitioners
in G.R. No.180771 claim that paragraphs 2 and 3 of Section 2, Article
XII of the 1987 Constitution mandate the exclusive use and enjoyment
bythe Filipinos of our natural resources, 65 and paragraph 4 does not
speak of service contracts but of FTAAs or Financial Technical Assistance
Agreements. 66
The public respondents again controvert the petitioners' claims and
asseverate that SC-46 does not violate Section 2, Article XII of the 1987
Constitution. They hold that SC-46 does not fall
under the coverage of paragraph 1 but instead, under paragraph 4 ofSection
2, Article XII of the 1987 Constitution on FTAAs. They also insist that
paragraphs 2 and 3, which refer to the grant of exclusive fishing right to
Filipinos, are not applicable to SC-46 as the contract does not grant exclusive
fishing rights to JAPEX nor does it otherwise impinge on the FIDEC's right to
preferential use of communal marine and fishing resources. 67
Ruling of the Court
on the legality of Service Contract No. 46
vis-à-vis Section 2, Article XII of the 1987 Constitution
The petitioners insist that SC-46 is null and void for having violated
Section 2, Article XII of the 1987 Constitution, which reads as follows:
Section 2. All lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces ofpotential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. Withthe exception of agricultural
lands, all other natural resources shall not be
alienated. The exploration, development, and utilization of natural
resources shall be under the full control and
supervision of the State. The State may directly undertake such
activities, or it may enter into co-production, joint venture, or
 production-sharing agreements with Filipino citizens, or corporations or
associations at least sixty per centum of whose capital is owned by
such citizens. Such agreements may be for a period not exceeding
twenty-five years, renewable for not more than twenty-five years, and
under such terms and conditions as may be provided by law. In
cases of water rights for irrigation, water supply, fisheries, or industrial
uses other than thedevelopment of water power, beneficial use may
be the measure and limit of the grant.
The State shall protect the nation's marine wealth in its
archipelagic waters, territorial sea, and exclusive economic zone, and
reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale
utilization of natural resources by Filipino citizens, as well as
cooperative fish farming, with priority to subsistence fishermen and
fishworkers in rivers, lakes, bays, and lagoons.
The President may enter into agreements with foreign-
owned corporations involving either technical or financial
assistance for large-scale exploration, development, and
utilization of minerals, petroleum, and other mineral oils
according to the general terms and conditions provided by law,
based on real contributions to the economic growth and general
welfare of the country.In such agreements, the State shall
promote the development and use of local scientific and technical
resources.
The President shall notify the Congress of every contract
entered into in accordance with this provision, within thirty days
from its execution.(Emphases ours.)
This Court has previously settled the issue of whether service contracts
are still allowed under the 1987 Constitution. In La Bugal, we held
that the deletion of the words "service contracts" in the 1987 Constitution did
not amount to a ban on them per se. In fact, in that decision, we quoted in
length, portions of the deliberations of the members of the Constitutional
Commission (ConCom) to show that in deliberating on paragraph 4, Section
2, Article XII, they were actually referring to service contracts as understood
in the 1973 Constitution, albeit with safety measures to eliminate or
minimize the abuses prevalent during the martial law regime, to wit: AIDSTE

Summation of the
ConCom Deliberations
At this point, we sum up the matters established, based on a
careful reading of the ConCom deliberations, as follows:
 • In their deliberations on what was to become paragraph
4, the framers used the term service contracts in referring
toagreements ...involving either technical or financial assistance.
• They spoke of service contracts as the concept was
understood in the 1973 Constitution.
• It was obvious from their discussions that they were not about
to ban or eradicate service contracts.
• Instead, they were plainly crafting provisions to put in place
safeguards that would eliminate or minimize the abuses prevalent
during the marital law regime.In brief, they were going to permit service
contracts with foreign corporations as contractors, but with safety
measures to prevent abuses, as an exception to the general norm
established in the first paragraphof Section 2 of Article XII. This
provision reserves or limits to Filipino citizens — and corporations at
least 60 percent of which is owned by such citizens — the exploration,
development and utilization of natural resources.
• This provision was prompted by the perceived
insufficiency of Filipino capital and the felt need for foreign investments
in the EDU of minerals and petroleum resources.
• The framers for the most part debated
about the sort of safeguards that would be considered adequate and
reasonable. But some of them, having more "radical" leanings, wanted
to ban service contracts altogether; for them, the provision would
permit aliens to exploit and benefit from the nation's natural resources,
which they felt should be reserved only for Filipinos.
• In the explanation of their votes, the individual commissioners
were heard by the entire body. They sounded off their individual
opinions, openly enunciated their philosophies, and supported or
attacked the provisions with fervor. Everyone's viewpoint was heard.
• In the final voting, the Article on the National Economy and
Patrimony — including paragraph 4 allowing service contracts with
foreign corporations as an exception to the general norm in paragraph
1 of Section 2 of the same article — was resoundingly approved by a
vote of 32 to 7, with 2 abstentions.
Agreements Involving Technical
or Financial Assistance are
Service Contracts with Safeguards
From the foregoing, we are impelled to conclude
that the phrase agreements involving either technical or financial
assistance,referred to in paragraph 4, are in fact service contracts.But
unlike those of the 1973 variety, the new ones are between foreign
corporations acting as contractors on the one hand; and
on the other, the government as principal or "owner" of theworks.
 In the new service contracts, the foreign contractors provide capital,
technology and technical know-how, and managerial expertise
in the creation and operation of large-scale mining/extractive
enterprises; and the government, through its agencies (DENR,
MGB),actively exercises control and supervision over the entire
operation. 68
In summarizing the matters discussed in the ConCom, we established
that paragraph 4, with the safeguards in place, isthe exception to
paragraph 1, Section 2 of Article XII.The following are the safeguards this
Court enumerated in La Bugal:
Such service contracts may be entered into only with respect to
minerals, petroleum and other mineral oils. The grant thereof is subject
to several safeguards, among which are these requirements:
(1) The service contract shall be crafted in accordance with a
general law that will set standard or uniform terms, conditions and
requirements, presumably to attain a certain uniformity in provisions
and avoid the possible insertion of terms disadvantageous
to the country.
(2) The President shall be the signatory for the government
because, supposedly before an agreement is presented
tothe President for signature, it will have been vetted several times
over at different levels to ensure that it conforms to law and can
withstand public scrutiny.
(3) Within thirty days of the executed agreement, the President
shall report it to Congress to give that branch ofgovernment an
opportunity to look over the agreement and interpose timely objections,
if any. 69
Adhering to the aforementioned guidelines, this Court finds that SC-46
is indeed null and void for noncompliance with therequirements of the 1987
Constitution.
1. The General Law on
Oil Exploration
The disposition, exploration, development, exploitation, and
utilization of indigenous petroleum in the Philippines are governed
by Presidential Decree No. 87 or the Oil Exploration and Development
Act of 1972. This was enacted by then President Ferdinand Marcos to
promote the discovery and production of indigenous petroleum
through the utilization of government and/or local or foreign private resources
to yield the maximum benefit to the Filipino people and the revenues
to the Philippine Government. 70
 Contrary to the petitioners' argument, Presidential Decree No. 87,
although enacted in 1972, before the adoption of the 1987 Constitution,
remains to be a valid law unless otherwise repealed, to wit:
ARTICLE XVIII — TRANSITORY PROVISIONS
Section 3. All existing laws, decrees, executive orders,
proclamations, letters of instructions, and other executive issuances
not inconsistent with this Constitution shall remain operative until
amended, repealed, or revoked.
If there were any intention to repeal Presidential Decree No. 87, it
would have been done expressly by Congress. For instance,Republic Act No.
7160, more popularly known as the Local Government Code of 1991,
expressly repealed a number of laws, including a specific provision
in Presidential Decree No. 87, viz.:
SECTION 534. Repealing Clause.— (a) Batas Pambansa Blg.
337, otherwise known as the "Local Government Code," Executive
Order No. 112 (1987),and Executive Order No. 319 (1988) are hereby
repealed.
(b) Presidential Decree Nos. 684, 1191, 1508 and such other
decrees, orders, instructions, memoranda and issuances related to or
concerning the barangay are hereby repealed.
(c) The provisions of Sections 2, 3, and 4 of Republic Act No.
1939 regarding hospital fund; Section 3, a (3) and b (2) ofRepublic
Act No. 5447 regarding the Special Education Fund; Presidential
Decree No. 144 as amended by Presidential Decree Nos. 559 and
1741; Presidential Decree No. 231 as amended; Presidential
Decree No. 436 as amended by Presidential Decree No. 558; and
Presidential Decree Nos. 381, 436, 464, 477, 526, 632, 752, and 1136
are hereby repealed and rendered of no force and effect.
(d) Presidential Decree No. 1594 is hereby repealed insofar as it
governs locally-funded projects.
(e) The following provisions are hereby repealed or amended
insofar as they are inconsistent with the provisions of this Code:
Sections 2, 16 and 29 of Presidential Decree No. 704; Section
12 of Presidential Decree No. 87, as amended; Sections 52, 53, 66,
67, 68, 69, 70, 71, 72, 73, and 74 of Presidential Decree No. 463, as
amended; and Section 16 of Presidential Decree No. 972, as
amended, and
(f) All general and special laws, acts, city charters, decrees,
executive orders, proclamations and administrative regulations, or part
or parts thereof which are inconsistent with any of the provisions of this
Code are hereby repealed or modified accordingly. (Emphasis
supplied.)
 This Court could not simply assume that while Presidential Decree No.
87 had not yet been expressly repealed, it had been impliedly repealed. As
we held in Villareña v. The Commission on Audit,71 "[i]mplied repeals are not
lightly presumed." It is a settled rule that when laws are in conflict with one
another, every effort must be exerted to reconcile them.
In Republic of the Philippines v. Marcopper Mining Corporation,72 we said: AaCTcI

The two laws must be absolutely incompatible, and a clear

finding thereof must surface, before the inference of implied repeal
may be drawn. The rule is expressed in the maxim, interpretare et
concordare leqibus est optimus interpretendi, i.e.,every statute must be
so interpreted and brought into accord with other laws as to form a
uniform system of jurisprudence. Thefundament is that the legislature
should be presumed to have known the existing laws on the subject
and not have enacted conflicting statutes. Hence, all doubts must be
resolved against any implied repeal, and all efforts should be exerted
in order to harmonize and give effect to all laws on the subject.
(Citation omitted.)
Moreover, in cases where the statute seems to be in conflict
with the Constitution, but a construction that it is in harmony
with the Constitution is also possible, that construction should be
preferred. 73 This Court, in Pangandaman v. Commission on
Elections 74 expounding on this point, pronounced:
It is a basic precept in statutory construction that a statute
should be interpreted in harmony with the Constitution and
thatthe spirit, rather than the letter of the law determines its
construction; for that reason, a statute must be read according to its
spirit and intent. . . . . (Citation omitted.)
Consequently, we find no merit in petitioners' contention that SC-46 is
prohibited on the ground that there is no general law prescribing the standard
or uniform terms, conditions, and requirements for service contracts involving
oil exploration and extraction.
But note must be made at this point that while Presidential Decree No.
87 may serve as the general law upon which a service contract for petroleum
exploration and extraction may be authorized, as will be discussed
below, the exploitation and utilization ofthis energy resource in the present
case may be allowed only through a law passed by Congress,
since the Tañon Strait is a NIPAS 75area.
2. President was not the
signatory to SC-46 and the
same was not submitted to
Congress
 While the Court finds that Presidential Decree No. 87 is sufficient to
satisfy the requirement of a general law, the absence ofthe two other
conditions, that the President be a signatory to SC-46, and that Congress be
notified of such contract, renders it null and void.
As SC-46 was executed in 2004, its terms should have conformed not
only to the provisions of Presidential Decree No. 87, but also to
those of the 1987 Constitution. The Civil Code provides:
ARTICLE 1306. The contracting parties may establish such
stipulations, clauses, terms and conditions as they may deem
convenient, provided they are not contrary to law,morals, good
customs, public order, or public policy. (Italics ours.)
In Heirs of San Miguel v. Court of Appeals,76 this Court held that:
It is basic that the law is deemed written into every contract.
Although a contract is the law
between the parties, theprovisions of positive law which regulate
contracts are deemed written therein and shall limit and
govern the relations betweenthe parties. ....(Citations omitted.)
Paragraph 4, Section 2, Article XII of the 1987 Constitution requires
that the President himself enter into any service contract
for the exploration of petroleum. SC-46 appeared to have been entered into
and signed only by the DOE through its then Secretary, Vicente S. Perez, Jr.,
contrary to the said constitutional requirement. Moreover, public respondents
have neither shown nor alleged that Congress was subsequently
notified of the execution of such contract. acEHCD

Public respondents' implied argument that based on the "alter ego

principle," their acts are also that of then President Macapagal-Arroyo's,
cannot apply in this case. In Joson v. Torres,77 we
explained the concept of the alter ego principle or thedoctrine of qualified
political agency and its limit in this wise:
Under this doctrine, which recognizes the establishment of a
single executive, all executive and administrative organizations are
adjuncts of the Executive Department, the heads of the various
executive departments are assistants and agents of the Chief
Executive, and, except in cases where the Chief Executive is
required by the Constitution or law to act in person
or the exigencies of the situation demand that he act
personally,the multifarious executive and administrative
functions of the Chief Executive are performed by and
through the executive departments,
and the acts of the Secretaries of such departments, performed and
promulgated in the regular course of business, are, unless disapproved
or reprobated by the Chief Executive
 presumptively the acts of the Chief Executive. (Emphasis ours, citation
omitted.)
While the requirements in executing service contracts in paragraph 4,
Section 2 of Article XII of the 1987 Constitution seem like mere formalities,
they, in reality, take on a much bigger role. As we have explained in La Bugal,
they are the safeguards put in place by the framers of the Constitution to
"eliminate or minimize the abuses prevalent during the martial law
regime." 78 Thus, they are not just mere formalities, which will only render a
contract unenforceable but not void, if not complied with. They are
requirements placed, not just in an ordinary statute, but in the fundamental
law, the non-observance of which will nullify thecontract. Elucidating
on the concept of a "constitution," this Court, in Manila Prince Hotel v.
Government Service Insurance System,79held:
A constitution is a system of fundamental laws for the governance and
administration of a nation. It is supreme, imperious, absolute and
unalterable except by the authority from which it emanates. It has been
defined as the fundamental and paramount law of the nation.It
prescribes the permanent framework of a system of government,
assigns to the different departments their respective powers and
duties, and establishes certain fixed principles on which government is
founded. The fundamental conception in other words is that it is a
supreme law to which all other laws must conform and in accordance
with which all private rights must be determined and all public authority
administered. Under the doctrine of constitutional supremacy, if a
law or contract violates any norm of the constitution that law or
contract whether promulgated by the legislative or
bythe executive branch or entered into by private persons for
private purposes is null and void and without any force and
effect.Thus, since the Constitution is the fundamental, paramount and
supreme law of the nation, it is deemed written in every statute and
contract.(Emphasis ours.)
As this Court has held in La Bugal, our Constitution requires
that the President himself be the signatory of service agreements with foreign-
owned corporations involving the exploration, development, and
utilization of our minerals, petroleum, and other mineral oils. This power
cannot be taken lightly.
In this case, the public respondents have failed to show
that the President had any participation in SC-46. Their argument that their
acts are actually the acts of then President Macapagal-Arroyo, absent
proof of her disapproval, must fail as the requirement that the President
herself enter into these kinds of contracts is embodied not just in any ordinary
statute, but in the Constitution itself. These service contracts
involving the exploitation, development, and utilization of our natural
resources are of paramount interest to the present and future generations.
Hence, safeguards were put in place to insure that the guidelines set by law
are meticulously observed and likewise to eradicate the corruption that may
easily penetrate departments and agencies by ensuring that the President has
authorized or approved of these service contracts herself.
Even under the provisions of Presidential Decree No. 87, it is required
that the Petroleum Board, now the DOE, obtain thePresident's approval
for the execution of any contract under said statute, as shown in the following
provision:
SECTION 5. Execution of contract authorized in this Act.—
Every contract herein authorized shall, subject
to theapproval of the President, be executed by the Petroleum Board
created in this Act, after due public notice pre-qualification and public
bidding or concluded through negotiations. In case bids are requested
or if requested no bid is submitted or the bids submitted are rejected
by the Petroleum Board for being disadvantageous
to the Government, the contract may be concluded through
negotiation.
In opening contract areas and in selecting the best offer for
petroleum operations, any of the following alternative procedures may
be resorted to by the Petroleum Board, subject to prior
approval of the President[.]
Even if we were inclined to relax the requirement in La Bugal to
harmonize the 1987 Constitution with the aforementioned
provision of Presidential Decree No. 87, it must be shown that the government
agency or subordinate official has been authorized by the President to enter
into such service contract for the government. Otherwise, it should be at least
shown that the President subsequently approved of such contract explicitly.
None of these circumstances is evident in the case at bar.
Service Contract No. 46
vis-à-vis Other Laws
Petitioners in G.R. No. 180771 claim that SC-46 violates Section
27 of Republic Act No. 9147 or the Wildlife Resources Conservation and
Protection Act, which bans all marine exploration and exploitation of oil and
gas deposits. They also aver that Section 14 of Republic Act No.
7586 or the National Integrated Protected Areas System Act of 1992 (NIPAS
Act), which allows theexploration of protected areas
for the purpose of information-gathering, has been repealed by Section
27 of Republic Act No. 9147.The said petitioners further claim that SC-46 is
anathema to Republic Act No. 8550 or the Philippine Fisheries Code of 1998,
which protects the rights of the fisherfolk in the preferential use of municipal
waters, with the exception being limited only to research and survey
activities. 80
The FIDEC, for its part, argues that to avail of the exceptions under
Section 14 of the NIPAS Act, the gathering of information must be in
accordance with a DENR-approved program, and the exploitation and
utilization of energy resources must be pursuant to a general law passed by
Congress expressly for that purpose. Since there is neither a DENR-approved
program nor a general law passed by Congress, the seismic surveys and oil
drilling operations were all done illegally. 81 The FIDEC likewise contends that
SC-46 infringes on its right to the preferential use of the communal fishing
waters as it is denied free access within the prohibited zone, in violation not
only of the Fisheries Code but also of the 1987 Constitutional provisions on
subsistence fisherfolk and social justice. 82Furthermore, the FIDEC believes
that the provisions in Presidential Decree No. 87, which allow offshore drilling
even in municipal waters, should be deemed to have been rendered
inoperative by the provisions of Republic Act No. 8550 and Republic Act No.
7160, which reiterate the social justice provisions of the Constitution. 83
The public respondents invoke the rules on statutory construction and
argue that Section 14 of the NIPAS Act is a more particular provision and
cannot be deemed to have been repealed by the more general prohibition in
Section 27 of Republic Act No. 9147. They aver that Section 14, under which
SC-46 falls, should instead be regarded as an exemption to Section 27. 84
Addressing the claim of petitioners in G.R. No. 180771 that there was a
violation of Section 27 of Republic Act No. 9147, thepublic respondents assert
that what the section prohibits is the exploration of minerals, which as defined
in the Philippine Mining Act of 1995, exclude energy materials such as coal,
petroleum, natural gas, radioactive materials and geothermal energy. Thus,
since SC-46 involves oil and gas exploration, Section 27 does not apply. 85
The public respondents defend the validity of SC-46 and insist that it
does not grant exclusive fishing rights to JAPEX; hence, it does not
violate the rule on preferential use of municipal waters. Moreover, they allege
that JAPEX has not banned fishing in theproject area, contrary to the FIDEC's
claim. The public respondents also contest the attribution of the declining fish
catch to theseismic surveys and aver that the allegation is unfounded. They
claim that according to the Bureau of Fisheries and Aquatic Resources' fish
catch data, the reduced fish catch started in the 1970s due to destructive
fishing practices. 86
SDHTEC

Ruling of the Court

on the legality of Service Contract No. 46
vis-à-vis Other Laws
 Although we have already established above that SC-46 is null and void
for being violative of the 1987 Constitution, it is our duty to still rule
on the legality of SC-46 vis-à-vis other pertinent laws, to serve as a guide
for the Government when executing service contracts involving not
only the Tañon Strait, but also other similar areas. While the petitioners allege
that SC-46 is in violation of several laws, including international ones, their
arguments focus primarily on the protected status of the Tañon Strait, thus
this Court will concentrate on those laws that pertain particularly
to the Tañon Strait as a protected seascape.
The Tañon Strait is a narrow passage of water bounded
by the islands of Cebu in the East and Negros in the West. It harbors a rich
biodiversity of marine life, including endangered species of dolphins and
whales. For this reason, former President Fidel V. Ramos
declared the Tañon Strait as a protected seascape in 1998 by
virtue of Proclamation No. 1234 — Declaring the Tañon Straitsituated
in the Provinces of Cebu, Negros Occidental and Negros Oriental as
a Protected Area pursuant to the NIPAS Act and shall be known
as Tañon Strait Protected Seascape.During former President Joseph E.
Estrada's time, he also constituted the Tañon StraitCommission via Executive
Order No. 76 to ensure the optimum and sustained use of the resources in
that area without threatening its marine life. He followed this with Executive
Order No. 177, 87 wherein he included the mayor of Negros Occidental
Municipality/City as a member of the Tañon Strait Commission, to
represent the LGUs concerned. This Commission, however, was
subsequently abolished in 2002 by then President Gloria Macapagal-Arroyo,
via Executive Order No. 72. 88
True to the constitutional policy that 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," 89 Congress enacted the NIPAS
Act to secure the perpetual existence ofall native plants and animals
through the establishment of a comprehensive
system of integrated protected areas. These areas possess common
ecological values that were incorporated into a holistic plan
representative of our natural heritage. The system encompasses
outstandingly remarkable areas and biologically important public lands that
are habitats of rare and endangered species of plants and animals,
biogeographic zones and related ecosystems, whether terrestrial, wetland,
or marine. 90 It classifies and administers all the designated protected areas to
maintain essential ecological processes and life-support systems, to preserve
genetic diversity, to ensure sustainable use of resources found therein, and to
maintain their natural conditions to the greatest extent
possible. 91 The following categories of protected areas were established
under the NIPAS Act:
a. Strict nature reserve;
b. Natural park;
c. Natural monument;
d. Wildlife sanctuary;
e. Protected landscapes and seascapes;
f. Resource reserve;
g. Natural biotic areas; and
h. Other categories established by law, conventions or international
agreements which the Philippine Government is a signatory. 92
Under Section 4 of the NIPAS Act, a protected area refers to
portions of land and water, set aside due to their unique physical and
biological significance, managed to enhance biological diversity
and protected against human exploitation.
The Tañon Strait, pursuant to Proclamation No. 1234, was set aside
and declared a protected area
under the category ofProtected Seascape. The NIPAS Act defines
a Protected Seascape to be an area of national significance characterized
by theharmonious interaction of man and land while providing opportunities
for public enjoyment through recreation and tourism withinthe normal lifestyle
and economic activity of this areas; 93 thus a management plan for each area
must be designed to protect and enhance the permanent preservation of its
natural conditions. 94 Consistent with this endeavor is the requirement that an
Environmental Impact Assessment (EIA) be made prior to undertaking any
activity outside the scope of the management plan. Unless an ECC
under the EIA system is obtained, no activity inconsistent
with the goals of the NIPAS Act shall be implemented. 95
The Environmental Impact Statement System (EISS) was established in
1978 under Presidential Decree No. 1586. It prohibits any person, partnership
or corporation from undertaking or operating any declared environmentally
critical project or areas without first securing an ECC issued by the President
or his duly authorized representative. 96 Pursuant to the EISS, which called
forthe proper management of environmentally critical
areas, 97 Proclamation No. 2146 98 was enacted, identifying the areas and
typesof projects to be considered as environmentally critical and
within the scope of the EISS, while DENR Administrative Order No. 2003-30
provided for its Implementing Rules and Regulations (IRR).
 DENR Administrative Order No. 2003-30 defines an environmentally
critical area as "an area delineated as environmentally sensitive such that
significant environmental impacts are expected if certain types of proposed
projects or programs are located, developed, or implemented in it";99 thus,
before a project,which is "any activity, regardless of scale or magnitude, which
may have significant impact on the environment," 100 is undertaken in it, such
project must undergo an EIA to evaluate and predict the likely impacts of all
its stages on the environment. 101 An EIA is described in detail as follows:
h. Environmental Impact Assessment (EIA) — process that involves
evaluating and predicting 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 community's
welfare. The process is undertaken by, among others, the project
proponent and/or EIA Consultant, EMB, a Review Committee,
affected communities and other stakeholders. 102
Under Proclamation No. 2146, the Tañon Strait is an
environmentally critical area, having been declared as aprotected area in
1998; therefore, any activity outside the scope of its management plan
may only be implemented pursuant to an ECC secured after undergoing
an EIA to determine the effects of such activity on its ecological system.
The public respondents argue that they had complied
with the procedures in obtaining an ECC 103 and that SC-46 falls
underthe exceptions in Section 14 of the NIPAS Act, due to the following
reasons:
1) The Tañon Strait is not a strict nature reserve or natural park;
2) Exploration is only for the purpose of gathering information on
possible energy resources; and
3) Measures are undertaken to ensure that the exploration is being
done with the least damage to surrounding areas. 104
We do not agree with the arguments raised by the public respondents.
Sections 12 and 14 of the NIPAS Act read:
SECTION 12. Environmental Impact Assessment.— Proposals
for activities which are outside the scope of themanagement plan
for protected areas shall be subject to an environmental impact
assessment as required by law before they are adopted,
and the results thereof shall be taken into consideration
in the decision-making process.
 No actual implementation of such activities shall be allowed
without the required Environmental Compliance Certificate (ECC)
under the Philippine Environmental Impact Assessment (EIA) system.
In instances where such activities are allowed to be
undertaken, the proponent shall plan and carry them out in such
manner as will minimize any adverse effects and take preventive and
remedial action when appropriate. The proponent shall be liable for
any damage due to lack of caution or indiscretion.
SECTION 14. Survey for Energy Resources.— Consistent
with the policies declared in Section 2 hereof, protected areas, except
strict nature reserves and natural parks, may be subjected to
exploration only for the purpose of gathering information on energy
resources and only if such activity is carried out with the least damage
to surrounding areas. Surveys shall be conducted only in accordance
with a program approved by the DENR, and the result of such surveys
shall be made available to the public and submitted to the President for
recommendation to Congress. Any exploitation and
utilization of energy resources found within NIPAS areas shall be
allowed only through a law passed by Congress. AScHCD

It is true that the restrictions found under the NIPAS Act are not without
exceptions. However, while an exploration done
for the purpose of surveying for energy resources is allowed under
Section 14 of the NIPAS Act, this does not mean that it is exempt
from the requirement to undergo an EIA under Section 12.In Sotto v.
Sotto,105 this Court explained why a statute should be construed as a whole:
A statute is passed as a whole and not in parts or sections and is
animated by one general purpose and intent. Consequently each part
or section should be construed in connection with every other part or
section and so as to produce a harmonious whole. It is not proper to
confine the attention to the one section to be construed. It is always an
unsafe way of construing a statute or contract to divide it by a
process of etymological dissection, into separate words, and then
apply to each, thus separated from its context, some particular
definition given by lexicographers, and then reconstruct the instrument
upon the basis of these definitions. An instrument must always be
construed as a whole, and the particular meaning to be attached to any
word or phrase is usually to be ascertained
from the context, the nature of the subject treated of and the purpose
or intention of the parties who executed the contract, or of the body
which enacted or framed the statute or constitution. . . . .
Surveying for energy resources under Section 14 is not an
exemption from complying with the EIA requirement in Section 12;
instead, Section 14 provides for additional requisites before any
exploration for energy resources may be done in protected areas.
 The rationale for such additional requirements are incorporated in
Section 2 of the NIPAS Act, to wit:
SECTION 2. Declaration of Policy. — Cognizant of the profound
impact of man's activities on all components of thenatural environment
particularly the effect of increasing population, resource exploitation
and industrial advancement and recognizing the critical
importance of protecting and maintaining the natural biological and
physical diversities of the environment notably on areas with
biologically unique features to sustain human life and development, as
well as plant and animal life, it is hereby
declared the policy of the State to secure for the Filipino
people of present and future generations the perpetual existenceof all
native plants and animals through the establishment of a
comprehensive system of integrated protected areas
within theclassification of national park as provided for
in the Constitution.
It is hereby recognized that these areas, although distinct in
features, possess common ecological values that may be incorporated
into a holistic plan representative of our natural heritage; that effective
administration of this area is possible only through cooperation among
national government, local government and concerned private
organizations; that the use and enjoyment of these protected areas
must be consistent with the principles of biological diversity and
sustainable development.
To this end, there is hereby established a National
Integrated Protected Areas System (NIPAS),which shall encompass
outstandingly remarkable areas and biologically important public lands
that are habitats of rare and endangered species of plants and
animals, biogeographic zones and related ecosystems, whether
terrestrial, wetland or marine, all of which shall be designated as
"protected areas."
The public respondents themselves admitted that JAPEX only started to
secure an ECC prior to the second sub-phase of SC-46, which
required the drilling of an oil exploration well. This means that
when the seismic surveys were done in the Tañon Strait, nosuch
environmental impact evaluation was done. Unless seismic surveys are
part of the management plan of the Tañon Strait, such surveys were done in
violation of Section 12 of the NIPAS Act and Section 4 of Presidential
Decree No. 1586, which provides: HESIcT

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 re-
alignment of government personnel, and their specific functions and
responsibilities.
For the same purpose as above, the Ministry of Human
Settlements shall: (a) prepare the proper land or water use pattern for
said critical project(s) or area(s);(b) establish ambient environmental
quality standards; (c) develop a program ofenvironmental
enhancement or protective measures against calamitous factors such
as earthquakes, floods, water erosion and others, and (d) perform such
other functions as may be directed by the President from time to time.
The respondents' subsequent compliance with the EISS for the second
sub-phase of SC-46 cannot and will not cure this violation. The following
penalties are provided for under Presidential Decree No. 1586 and the NIPAS
Act.
Section 9 of Presidential Decree No. 1586 provides for the penalty
involving violations of the ECC requirement:
Section 9. Penalty for Violation.— Any person, corporation or
partnership found violating Section 4 of this Decree, orthe 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
certificates and/or a fine in an amount not to exceed Fifty Thousand
Pesos (P50,000.00) for every violation thereof,
at the discretion of the National Environmental Protection
Council.(Emphasis supplied.)
Violations of the NIPAS Act entails the following fines and/or
imprisonment under Section 21:
SECTION 21. Penalties.— Whoever violates this Act or any
rules and regulations issued by the Department pursuant to this Act or
whoever is found guilty by a competent
court of justice of any of the offenses in the preceding section shall
be fined inthe amount of not less than Five thousand pesos
(P5,000) nor more than Five hundred thousand pesos
(P500,000),exclusive of the value of the thing damaged or
imprisonment for not less than one (1) year but not more than six
 (6) years, or both, as determined by the court:Provided,
that, if the area requires rehabilitation or restoration as
determined by the court, the offender shall be required to restore
or compensate for the restoration to thedamages:Provided, further,
that court shall order the eviction of the offender from the land
and the forfeiture in favor ofthe Government of all minerals,
timber or any species collected or removed including all
equipment, devices and firearms used in connection therewith,
and any construction or improvement made thereon
by the offender.If theoffender is an association or
corporation, the president or manager shall be directly responsible
for the act of his employees and laborers: Provided, finally,
that the DENR may impose administrative fines and penalties
consistent with this Act.(Emphases supplied.)
Moreover, SC-46 was not executed for the mere purpose of gathering
information on the possible energy resources in theTañon Strait as it also
provides for the parties' rights and obligations relating to extraction and
petroleum production should oil in commercial quantities be found to exist
in the area. While Presidential Decree No. 87 may serve as the general
law upon which a service contract for petroleum exploration and
extraction may be authorized, the exploitation and utilization of this
energy resource in the present case may be allowed only through a law
passed by Congress, since the Tañon Strait is a NIPAS area.106 Since
there is no such law specifically allowing oil exploration and/or
extraction in the Tañon Strait, noenergy resource exploitation and
utilization may be done in said protected seascape.
In view of the foregoing premises and conclusions, it is no longer
necessary to discuss the other issues raised in these consolidated petitions.
WHEREFORE,the Petitions
in G.R. Nos. 180771 and 181527 are GRANTED,Service Contract No. 46 is
hereby declared NULL AND VOID for violating the 1987
Constitution, Republic Act No. 7586, and Presidential Decree No. 1586.
SO ORDERED.
Sereno, C.J.,Carpio, Velasco, Jr.,Brion, Peralta, Bersamin, Del Castillo,
Villarama, Jr.,Perez, Mendoza, Reyes and Perlas-Bernabe, JJ.,concur.
Leonen, J.,see concurring opinion.
Jardeleza, * J.,took no part; prior OSG action.
Separate Opinions
"Until one has loved an animal,
a part of one's soul remains
 unawakened."
Anatole France

LEONEN, J., concurring:

I concur in the result, with the following additional reasons.

I
In G.R. No. 180771, petitioners Resident Marine Mammals allegedly
bring their case in their personal capacity, alleging that they stand to benefit or
be injured from the judgment on the issues. The human petitioners implead
themselves in a representative capacity "as legal guardians of the lesser life-
forms and as responsible stewards of God's Creations." 1 They use Oposa v.
Factoran, Jr. 2 as basis for their claim, asserting their right to enforce
international and domestic environmental laws enacted for their benefit
under the concept of stipulation pour
autrui.3 As the representatives of Resident Marine Mammals, the human
petitioners assert that they have the obligation to build awareness
among the affected residents of Tañon Strait as well as to
protect the environment, especially in light of the government's failure, as
primary steward, to do its duty under the doctrine of public trust. 4
Resident Marine Mammals and the human petitioners also assert that
through this case, this court will have the opportunity to lower the threshold
for locus standi as an exercise of "epistolary jurisdiction." 5
The zeal of the human petitioners to pursue their desire to
protect the environment and to continue to define environmental rights
in the context of actual cases is commendable. However, the space for legal
creativity usually required for advocacy of issuesof the public interest is not so
unlimited that it should be allowed to undermine the other values protected by
current substantive and procedural laws. Even rules of procedure as currently
formulated set the balance between competing interests. We cannot abandon
these rules when the necessity is not clearly and convincingly presented.
The human petitioners, in G.R. No. 180771, want us to create
substantive and procedural rights for animals through their allegation that they
can speak for them. Obviously, we are asked to accept the premises that (a)
they were chosen by the ResidentMarine Mammals of Tañon Strait; (b) they
were chosen by a representative
group of all the species of the Resident MarineMammals; (c) they were able to
communicate with them; and (d) they received clear consent from their animal
principals that they would wish to use human legal institutions to pursue their
interests. Alternatively, they ask us to acknowledge through judicial notice
that the interests that they, the human petitioners, assert are identical to
what the Resident Marine Mammals would assert had they been humans
and the legal strategies that they invoked are the strategies that they agree
with.
In the alternative, they want us to accept through judicial notice that
there is a relationship of guardianship between them and
all the resident mammals in the affected ecology.
Fundamental judicial doctrines that may significantly change
substantive and procedural law cannot be founded on feigned representation.
Instead, I agree that the human petitioners should only speak for
themselves and already have legal standing to sue with respect to the issue
raised in their pleading. The rules on standing have already been liberalized
to take into consideration thedifficulties in the assertion of environmental
rights. When standing becomes too liberal, this can be the occasion for
abuse.
II
Rule 3, Section 1 of the 1997 Rules of Civil Procedure, in part,
provides:
SECTION 1. Who may be parties; plaintiff and defendant.— Only
natural or juridical persons, or entities authorized by law may be
parties in a civil action.
The Rules provide that parties may only be natural or juridical persons
or entities that may be authorized by statute to be parties in a civil action. caITAC

Basic is the concept of natural and juridical persons in our Civil Code:
ARTICLE 37. Juridical capacity, which is the fitness to
be the subject of legal relations, is inherent in every natural person and
is lost only through death. Capacity to act, which is the power to do
acts with legal effect, is acquired and may be lost.
Article 40 further defines natural persons in the following manner:
ARTICLE 40. Birth determines personality; but the conceived child
shall be considered born for all purposes that are favorable to it,
provided it be born later with the conditions specified in the following
article.
Article 44, on the other hand, enumerates the concept of a juridical
person:
ARTICLE 44. The following are juridical persons:
(1) The State and its political subdivisions;
 (2) Other corporations, institutions and entities for public interest
or purpose, created by law; their personality begins as
soon as they have been constituted according to law;
(3) Corporations, partnerships and associations for private
interest or purpose to which the law grants a juridical
personality, separate and distinct from that of each
shareholder, partner or member.
Petitioners in G.R. No. 180771 implicitly suggest that we amend, rather
than simply construe, the provisions of the Rules ofCourt as well as
substantive law to accommodate Resident Marine Mammals or animals. This
we cannot do.
Rule 3, Section 2 of the 1997 Rules of Civil Procedure further
defines real party in interest:
SEC. 2. Parties in interest.— A real party in interest is the party who
stands to be benefited or injured by the judgment in thesuit,
or the party entitled to the avails of the suit. Unless otherwise
authorized by law or these Rules, every action must be prosecuted or
defended in the name of the real party in interest. (2a) 6
A litigant who stands to benefit or sustain an injury
from the judgment of a case is a real party in interest. 7 When a case is
brought to the courts, the real party in interest must show that another party's
act or omission has caused a direct injury, making his or her interest both
material and based on an enforceable legal right. 8
Representatives as parties, on the other hand, are parties acting in
representation of the real party in interest, as defined in Rule 3, Section
3 of the 1997 Rules of Civil Procedure:
SEC. 3. Representatives as parties.— Where the action is allowed to
be prosecuted or defended by a representative or someone acting in a
fiduciary capacity, the beneficiary shall be included
in the title of the case and shall be deemed to be the real party in
interest. A representative may be a trustee of an express trust, a
guardian, an executor or administrator, or a party authorized by law or
these Rules. An agent acting in his own name and for the benefit of an
undisclosed principal may sue or be sued without joining the principal
except when the contract involves things belonging to the principal.
(3a) 9
The rule is two-pronged. First, it defines a representative as a party who
is not bound to directly or actually benefit or suffer from the judgment, but
instead brings a case in favor of an identified real party in
interest. 10 The representative is an outsider tothe cause of action.
Second, the rule provides a list of who may be considered as
"representatives." It is not an exhaustive list, butthe rule limits the coverage
only to those authorized by law or the Rules of Court. 11
These requirements should apply even in cases
involving the environment, which means that for the Petition of the human
petitioners to prosper, they must show that
(a) the Resident Marine Mammals are real parties in interest; and (b)
that the human petitioners are authorized by law or the Rules to act in a
representative capacity.
The Resident Marine Mammals are comprised of "toothed whales,
dolphins, porpoises, and other cetacean species
inhabitingTañon Strait." 12 While relatively new in Philippine
jurisdiction, the issue of whether animals have legal standing before courts
has been the subject of academic discourse in
light of the emergence of animal and environmental rights.
In the United States, animal rights advocates have managed to
establish a system which Hogan explains as the "guardianship model for
nonhuman animals":13
Despite Animal Lovers, there exists a well-established system
by which nonhuman animals may obtain judicial review to enforce their
statutory rights and protections: guardianships. With court approval,
animal advocacy organizations may bring suit on behalf of nonhuman
animals in the same way court-appointed guardians bring suit on
behalf of mentally-challenged humans who possess an enforceable
right but lack the ability to enforce it themselves.
In the controversial but pivotal Should Trees Have Standing? —
Toward Legal Rights for Natural Objects,Christopher D. Stone asserts
that the environment should possess the right to seek judicial redress
even though it is incapable of representing itself. While
asserting the rights of speechless entities such as the environment or
nonhuman animals certainly poses legitimate challenges — such as
identifying the proper spokesman — the American legal system is
already well-equipped with a reliable mechanism by which nonhumans
may obtain standing via a judicially-established guardianship. Stone
notes that other speechless — and nonhuman — entities such as
corporations, states, estates, and municipalities have standing to bring
suit on their own behalf. There is little reason to fear abuses under this
regime as procedures for removal and substitution, avoiding
conflicts of interest, and termination of a guardianship are well
established.
In fact, the opinion in Animal Lovers suggests that such an
arrangement is indeed possible. The court indicated that ALVA might
have obtained standing in its own right if it had an established
 history of dedication to the cause of the humane treatmentof animals. It
noted that the Fund for Animals had standing and indicated that
another more well-known advocacy organization might have had
standing as well. The court further concluded that an organization's
standing is more than a derivative of its history, but history is a relevant
consideration where organizations are not well-established prior to
commencing legal action. ALVA was not the proper plaintiff because it
could not identify previous activities demonstrating its recognized
activism for and commitment to the dispute independent of its desire to
pursue legal action. The court's analysis suggests that a qualified
organization with a demonstrated commitment to a cause could indeed
bring suit on behalf of the speechless in the form of a court-sanctioned
guardianship.
This Comment advocates a shift in contemporary standing
doctrine to empower non-profit organizations with an established
history of dedication to the cause and relevant expertise to serve as
official guardians ad litem on behalf ofnonhuman animals interests.The
American legal system has numerous mechanisms for
representing the rights and interests ofnonhumans; any challenges
inherent in extending these pre-existing mechanisms to nonhuman
animals are minimal compared to an interest in the proper
administration of justice. To adequately protect the statutory
rights of nonhuman animals, the legal system must recognize those
statutory rights independent of humans and provide a viable
means of enforcement. Moreover, theidea of a guardianship for
speechless plaintiffs is not new and has been urged on
behalf of the natural environment. Such a model is even more
compelling as applied to nonhuman animals, because they are sentient
beings with the ability to feel pain and exercise rational thought. Thus,
animals are qualitatively different from other
legally protected nonhumans and therefore have interests deserving
direct legal protection.
Furthermore, the difficulty of enforcing the statutory
rights of nonhuman animals threatens the integrity of the federal
statutes designed to protect them, essentially rendering them
meaningless. Sensing that laws protecting nonhuman animals would
be difficult to enforce, Congress provided for citizen suit
provisions: the most well-known example is found in theEndangered
Species Act (ESA).Such provisions are evidence of legislative intent to
encourage civic participation on behalf ofnonhuman animals. Our
law of standing should reflect this intent and its implication that humans
are suitable representatives ofthe natural environment, which includes
nonhuman animals. 14 (Emphasis supplied, citation omitted)
When a court allows guardianship as a basis of representation, animals
are considered as similarly situated as individuals who have enforceable
rights but, for a legitimate reason (e.g.,cognitive disability),are unable to bring
suit for themselves. They are also similar to entities that by their very nature
are incapable of speaking for themselves (e.g.,corporations, states, and
others).
In our jurisdiction, persons and entities are recognized both in law
and the Rules of Court as having standing to sue and, therefore, may be
properly represented as real parties in interest. The same cannot be said
about animals.
Animals play an important role in households, communities,
and the environment. While we, as humans, may feel the need to nurture and
protect them, we cannot go as far as saying we represent their best interests
and can, therefore, speak for them beforethe courts. As humans, we cannot
be so arrogant as to argue that we know the suffering of animals and that we
know what remedy they need in the face of an injury.
Even in Hogan's discussion, she points out that in a case
before the United States District Court for the Central
District ofCalifornia, Animal Lovers Volunteer Ass'n. v. Weinberger,15 the court
held that an emotional response to what humans perceive to be an injury
inflicted on an animal is not within the "zone-of-interest" protected by
law. 16 Such sympathy cannot stand independentof or as a substitute for an
actual injury suffered by the claimant. 17 The ability to represent animals was
further limited in that case by the need to prove "genuine dedication" to
asserting and protecting animal rights: ICHDca

What ultimately proved fatal to ALVA's claim, however

was the court's assertion that standing doctrine further required ALVA
to differentiate its genuine dedication to the humane
treatment of animals from the general disdain for animal cruelty shared
by the public at large. In doing so, the court found ALVA's asserted
organizational injury to be abstract and thus relegated ALVA
to the ranks of the "concerned bystander."
xxx xxx xxx
In fact, the opinion in Animal Lovers suggests that such an
arrangement is indeed possible. The court indicated that ALVA might
have obtained standing in its own right if it had an established
history of dedication to the cause of the humane treatmentof animals.It
noted that the Fund for Animals had standing and indicated that
another more well-known advocacy organization might have had
standing as well. The court further concluded that an organization's
standing is more than a derivative of its history, but history is a relevant
consideration where organizations are not well-established prior to
commencing legal action.ALVA was not the proper plaintiff because it
could not identify previous activities demonstrating its recognized
 activism for and commitment to the dispute independent of its desire to
pursue legal action. The court's analysis suggests that a qualified
organization with a demonstrated commitment to a cause could indeed
bring suit on behalf of the speechless in the form of a court-sanctioned
guardianship.18 (Emphasis supplied, citation omitted)
What may be argued as being parallel to this concept of guardianship
is the principle of human stewardship over theenvironment in a citizen suit
under the Rules of Procedure for Environmental Cases. A citizen suit allows
any Filipino to act as a representative of a party who has enforceable rights
under environmental laws before Philippine courts, and is defined in Section
5:
SEC. 5. Citizen suit.— Any Filipino citizen in representation of others,
including minors or generations yet unborn, may file an action to
enforce rights or obligations under environmental laws.
Upon the filing of a citizen suit, the court shall issue an order which
shall contain a brief description of the cause of action and the reliefs
prayed for, requiring all interested parties to manifest their interest to
intervene in the case within fifteen (15) days from notice
thereof. The plaintiff may publish the order once in a newspaper of a
general circulation in the Philippines or furnish all
affected barangays copies of said order.
There is no valid reason in law or the practical requirements of this
case to implead and feign representation on behalf of animals. To have
done so betrays a very anthropocentric view of environmental
advocacy. There is no way that we, humans, can claim to speak for
animals let alone present that they would wish to use our court system,
which is designed to ensure that humans seriously carry their
responsibility including ensuring a viable ecology for themselves,
which of course includes compassion for all living things.
Our rules on standing are sufficient and need not be further relaxed.
In Arigo v. Swift,19 I posed the possibility of further reviewing the broad
interpretation we have given to the rule on standing. While representatives are
not required to establish direct injury on their part, they should only be allowed
to represent after complying with the following:
[I]t is imperative for them to indicate with certainty the injured parties
on whose behalf they bring the suit. Furthermore, theinterest of those
they represent must be based upon concrete legal rights. It is not
sufficient to draw out a perceived interest from a general, nebulous
idea of a potential "injury." 20
I reiterate my position in Arigo v. Swift and in Paje v. Casiño 21 regarding
this rule alongside the appreciation of legal standing in Oposa v. Factoran22 for
environmental cases. In Arigo,I opined that procedural liberality, especially in
cases brought by representatives, should be used with great caution:
Perhaps it is time to revisit the ruling in Oposa v. Factoran.
That case was significant in that, at that time, there was need to
call attention to environmental concerns in light ofemerging
international legal principles. While "intergenerational responsibility" is
a noble principle, it should not be used to obtain judgments that would
preclude future generations from making their own assessment based
on their actual concerns. Thepresent generation must restrain itself
from assuming that it can speak best for those who will exist at a
different time, under a different set of circumstances. In
essence, the unbridled resort to representative suit will inevitably result
in preventing future generations from protecting their own rights and
pursuing their own interests and decisions. It
reduces the autonomy of our children and our children's children. Even
before they are born, we again restricted their ability to make their own
arguments.
It is my opinion that, at best, the use of the Oposa doctrine in
environmental cases should be allowed only when a) there is a clear
legal basis for the representative suit; b) there are actual concerns
based squarely upon an existing legal right; c) there
isno possibility of any countervailing interests existing
within the population represented or those that are yet to be born; and
d) there is an absolute necessity for such standing because there is a
threat of catastrophe so imminent that an immediate protective
measure is necessary. Better still, in the light of its costs and risks, we
abandon the precedent all together.23 (Emphasis in the original)
Similarly, in Paje:
A person cannot invoke the court's jurisdiction if he or she
has no right or interest to protect. He or she who invokes thecourt's
jurisdiction must be the "owner of the right sought to be enforced." In
other words, he or she must have a cause of action. An action may be
dismissed on the ground of lack of cause of action if the person who
instituted it is not the real party in interest.24 The term "interest"
under the Rules of Court must refer to a material interest that is not
merely a curiosity about or an "interest in the question
involved." The interest must be present and substantial. It is not a mere
expectancy or a future, contingent interest.
A person who is not a real party in interest may institute an
action if he or she is suing as representative of a real party in interest.
When an action is prosecuted or defended by a representative, that
representative is not and does not become the real party in
interest. The person represented is deemed the real party in
interest. The representative remains to be a third party tothe action
instituted on behalf of another.
xxx xxx xxx
To sue under this rule, two elements must be present:
"(a) the suit is brought on behalf of an identified party whose right has
been violated, resulting in some form of damage, and
(b) the representative authorized by law or the Rules of Court to
represent the victim."
The Rules of Procedure for Environmental Cases allows
filing of a citizen's suit. A citizen's suit under this rule allows any
Filipino citizen to file an action for the enforcement of environmental
law on behalf of minors or generations yet unborn. It is essentially a
representative suit that allows persons who are not real parties in
interest to institute actions on behalf of the real party in interest.
The expansion of what constitutes "real party in interest" to
include minors and generations yet unborn is a recognition ofthis
court's ruling in Oposa v. Factoran.This court
recognized the capacity of minors (represented by their parents) to file
a class suit on behalf of succeeding generations based
on the concept of intergenerational responsibility to ensure the future
generation's access to and enjoyment of [the] country's natural
resources.
To allow citizen's suits to enforce environmental rights of others,
including future generations, is dangerous for three reasons:
First,they run the risk of foreclosing
arguments of others who are unable to take part
in the suit, putting into question its
representativeness. Second,varying interests may
potentially result in arguments that are bordering on
political issues, the resolutions of which do not fall upon
this court. Third,automatically allowing a class or citizen's
suit on behalf of minors and generations yet unborn may
result in the oversimplification of what may be a complex
issue, especially in
light of the impossibility of determining future generation's
true interests on the matter.
In citizen's suits, persons who may have no interest in the case
may file suits for others. Uninterested persons will argue
forthe persons they represent, and the court will decide based on their
evidence and arguments. Any decision by the court will be binding
upon the beneficiaries, which in this case are the minors and the future
generations. The court's decision will be res judicata upon them and
conclusive upon the issues presented. 25
 The danger in invoking Oposa v. Factoran to justify all
kinds of environmental claims lies in its potential to
diminish the valueof legitimate environmental rights.
Extending the application of "real party in interest"
to the Resident Marine Mammals, or animals in general, through a judicial
pronouncement will potentially result in allowing petitions based on mere
concern rather than an actual enforcement of a right. It is impossible for
animals to tell humans what their concerns are. At best, humans can only
surmisethe extent of injury inflicted, if there be any. Petitions invoking a right
and seeking legal redress before this court cannot be a product of guesswork,
and representatives have the responsibility to ensure that they bring
"reasonably cogent, rational, scientific, well-founded arguments" 26 on
behalf of those they represent.
Creative approaches to fundamental problems should be welcome.
However, they should be considered carefully so that nounintended or
unwarranted consequences should follow. I concur
with the approach of Madame Justice Teresita J. Leonardo-De Castro in her
brilliant ponencia as it carefully narrows down the doctrine in
terms of standing. Resident Marine Mammals and thehuman petitioners
have no legal standing to file any kind of petition.
However, I agree that petitioners in G.R. No. 181527, namely, Central
Visayas Fisherfolk Development Center, Engarcial, Yanong, and Labid, have
standing both as real parties in interest and as representatives of subsistence
fisherfolks of theMunicipalities of Aloguinsan and Pinamungahan, Cebu, and
their families, and the present and future generations of Filipinos whose rights
are similarly affected. The activities undertaken under Service Contract 46
(SC-46) directly affected their source oflivelihood, primarily felt
through the significant reduction of their fish harvest. 27 The actual, direct, and
material damage they suffered, which has potential long-term effects
transcending generations, is a proper subject of a legal suit.
III
In our jurisdiction, there is neither reason nor any legal basis
for the concept of implied petitioners, most especially when theimplied
petitioner was a sitting President of the Republic of the Philippines.
In G.R. No. 180771, apart from adjudicating unto
themselves the status of "legal guardians" of whales, dolphins, porpoises, and
other cetacean species, human petitioners also impleaded Former President
Gloria Macapagal-Arroyo as "unwilling co-petitioner" for "her express
declaration and undertaking inthe ASEAN Charter to protect Tañon Strait." 28
No person may implead any other person as a co-plaintiff or co-
petitioner without his or her consent. In our jurisdiction, only when there is a
party that should have been a necessary party but was unwilling to join would
there be an allegation as to why that party has been omitted. In Rule 3,
Section 9 of the 1997 Rules of Civil Procedure: TCAScE

SEC. 9. Non-joinder of necessary parties to be pleaded.—

Whenever in any pleading in which a claim is asserted a necessary
party is not joined, the pleader shall set forth his name, if known, and
shall state why he is omitted. Should the court find the reason
for the omission unmeritorious, it may order the inclusion of the omitted
necessary party if jurisdiction over his person may be obtained.
The failure to comply with the order for his inclusion, without justifiable
cause, shall be deemed a waiver of the claim against such party.
The non-inclusion of a necessary party does not prevent the court from
proceeding in the action, and the judgment rendered therein shall be
without prejudice to the rights of such necessary party. 29
A party who should have been a plaintiff or petitioner but whose
consent cannot be obtained should be impleaded as a defendant
in the nature of an unwilling co-plaintiff under Rule 3, Section 10 of the 1997
Rules of Civil Procedure:
SEC. 10.Unwilling co-plaintiff.— If the consent of any party who
should be joined as plaintiff can not be obtained, he may be made a
defendant and the reason therefor shall be stated in the complaint. 30
The reason for this rule is plain: Indispensable party plaintiffs who
should be part of the action but who do not consent should be put
within the jurisdiction of the court through summons or other court processes.
Petitioners should not take it upon themselves to simply implead any party
who does not consent as a petitioner. This places the unwilling co-petitioner
at the risk ofbeing denied due process.
Besides, Former President Gloria Macapagal-Arroyo cannot be a party
to this suit. As a co-equal constitutional department, we cannot assume
that the President needs to enforce policy directions by suing his or her alter-
egos. The procedural situation caused by petitioners may have gained public
attention, but its legal absurdity borders on the contemptuous. The Former
President's name should be stricken out of the title of this case.
IV
I also concur with the conclusion that SC-46 is both illegal and
unconstitutional.
SC-46 is illegal because it violates Republic Act No.
7586 or the National Integrated Protected Areas System Act of 1992,
andPresidential Decree No. 1234, 31 which declared Tañon Strait as
a protected seascape. It is unconstitutional because it violates thefourth
paragraph of Article XII, Section 2 of the Constitution.
V
Petitioner Central Visayas Fisherfolk Development Center asserts that
SC-46 violated Article XII, Section 2, paragraph 1 of the1987
Constitution because Japan Petroleum Exploration Co., Ltd. (JAPEX) is 100%
Japanese-owned. 32 It further asserts that SC-46 cannot be validly classified
as a technical and financial assistance agreement executed under Article XII,
Section 2, paragraph 4 ofthe 1987 Constitution. 33 Public respondents counter
that SC-46 does not fall under the coverage of paragraph 1, but is a validly
executed contract under paragraph 4. 34 Public respondents further aver that
SC-46 neither granted exclusive fishing rights to JAPEX nor violated Central
Visayas Fisherfolk Development Center's right to preferential
use of communal marine and fishing resources. 35
VI
Article XII, Section 2 of the 1987 Constitution states:
Section 2.All lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With theexception of agricultural
lands, all other natural resources shall not be
alienated. The exploration, development, and utilization ofnatural
resources shall be under the full control and
supervision of the State. The State may directly undertake such
activities, or it may enter into co-production, joint venture, or
production-sharing agreements with Filipino citizens, or corporations or
associations at least sixty per centum of whose capital is owned by
such citizens. Such agreements may be for a period not exceeding
twenty-five years, renewable for not more than twenty-five years, and
under such terms and conditions as may be provided by law. In
cases of water rights for irrigation, water supply fisheries, or industrial
uses other than the development ofwater power, beneficial use may
be the measure and limit of the grant.
The State shall protect the nation's marine wealth in its
archipelagic waters, territorial sea, and exclusive economic zone, and
reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale
utilization of natural resources by Filipino citizens, as well as
cooperative fish farming, with priority to subsistence fishermen and
fish-workers in rivers, lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned
corporations involving either technical or financial assistance for large-
 scale exploration, development, and utilization of minerals, petroleum,
and other mineral oils according to the general terms and conditions
provided by law, based on real contributions to the economic growth
and general welfare of the country. In such agreements, the State shall
promote the development and use of local scientific and technical
resources.
The President shall notify the Congress of every contract
entered into in accordance with this provision, within thirty days from its
execution. (Emphasis supplied)
I agree that fully foreign-owned corporations may participate
in the exploration, development, and use of natural resources,but only through
either financial agreements or technical ones. This is the clear
import of the words "either financial or technical assistance agreements." This
is also the clear result if we compare the 1987 constitutional provision
with the versions in the 1973 and 1935 Constitution:
1973 CONSTITUTION
ARTICLE XIV
THE NATIONAL ECONOMY AND THE PATRIMONY OF
THE NATION
SEC. 9. The disposition, exploration, development, of exploitation, or
utilization of any of the natural resources of the Philippines shall be
limited to citizens of the Philippines, or to corporations or association at
least sixty per centum of the capital of which is owned by such
citizens. The Batasang Pambansa, in the national interest, may allow
such citizens, corporations, or associations toenter into service
contracts for financial, technical, management, or other
forms of assistance with any foreign person or entity
for the exploitation, development, exploitation, or
utilization of any of the natural resources.Existing valid and binding
service contracts for financial, the technical, management, or other
forms of assistance are hereby recognized as such. (Emphasis
supplied)
1935 CONSTITUTION
ARTICLE XIII
CONSERVATION AND UTILIZATION OF NATURAL RESOURCES
SECTION 1. All agricultural timber, and mineral lands of the public
domain, waters, minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, and other natural
resources of the Philippines belong to the State, and their disposition,
exploitation, development, or utilization shall be limited to
citizens of the Philippines, or to corporations or associations at least
sixty per centum of the capital of which is owned by such citizens,
subject to any existing right, grant, lease, or concession
 at thetime of the inauguration of the Government established under
this Constitution. Natural resources, with the exception of public
agricultural land, shall not be alienated, and no license, concession, or
lease for the exploitation, development, or
utilization ofany of the natural resources shall be granted for a period
exceeding twenty-five years, renewable for another twenty-five years,
except as to water rights for irrigation, water supply, fisheries, or
industrial uses other than the development of water power, in which
cases beneficial use may be the measure and the limit of the grant.
The clear text of the Constitution in light of its history prevails over any
attempt to infer interpretation from the Constitutional Commission
deliberations. The constitutional texts are the product of a full sovereign act:
deliberations in a constituent assemblyand ratification. Reliance on recorded
discussion of Constitutional Commissions, on the other hand, may result in
dependence on incomplete authorship. Besides, it opens judicial review to
further subjectivity from those who spoke during the Constitutional
Commission deliberations who may not have predicted how their words will be
used. It is safer that we use the words already
in theConstitution. The Constitution was their product. Its words were read by
those who ratified it. The Constitution is what society relies upon even at
present.
SC-46 is neither a financial assistance nor a technical assistance
agreement.
Even supposing for the sake of argument that it is, it could not be
declared valid in light of the standards set forth in La Bugal-B'laan Tribal
Association, Inc. v. Ramos:36
Such service contracts may be entered into only with respect to
minerals, petroleum and other mineral oils.The grant thereof is subject
to several safeguards, among which are these requirements:
(1) The service contract shall be crafted in accordance with a
general law that will set standard or uniform terms,
conditions and requirements, presumably to attain a certain
uniformity in provisions and avoid the possible
insertionof terms disadvantageous to the country.
(2) The President shall be the signatory for the government
because, supposedly before an agreement is presented
tothe President for signature, it will have been vetted
several times over at different levels to ensure that it
conforms to law and can withstand public scrutiny. cTDaEH

(3) Within thirty days of the executed agreement, the President

shall report it to Congress to give that
branch ofgovernment an opportunity to look
 over the agreement and interpose timely objections, if
any. 37 (Emphasis in theoriginal, citation omitted)
Based on the standards pronounced in La Bugal,SC-46'S validity must
be tested against three important points: (a) whether SC-46 was crafted in
accordance with a general law that provides standards, terms, and conditions;
(b) whether SC-46 was signed bythe President for and on
behalf of the government; and (c) whether it was reported by the President to
Congress within 30 days ofexecution.
VII
The general law referred to as a possible basis for SC-46's validity
is Presidential Decree No. 87 or the Oil Exploration and Development
Act of 1972. It is my opinion that this law is unconstitutional in that it allows
service contracts, contrary to Article XII, Section 2 of the 1987 Constitution:
The President may enter into agreements with foreign-owned
corporations involving either technical or financial assistance for large-
scale exploration, development, and utilization of minerals, petroleum,
and other mineral oils according to the general terms and conditions
provided by law,based on real contributions to the economic growth
and general welfare of the country. In such agreements, the State shall
promote the development and use of local scientific and technical
resources. (Emphasis supplied)
The deletion of service contracts
from the enumeration of the kind of agreements the President may enter into
with foreign-owned corporations for exploration and utilization of resources
means that service contracts are no longer allowed by theConstitution.
Pursuant to Article XVIII, Section 3 of the 1987 Constitution, 38 this
inconsistency renders the law invalid and ineffective.
SC-46 suffers from the lack of a special law allowing its
activities. The Main Opinion emphasizes an important point, which is that SC-
46 did not merely involve exploratory activities, but also provided the rights
and obligations of the parties should it be discovered that there is oil in
commercial quantities in the area. The Tañon Strait being
a protected seascape under Presidential Decree No. 1234 39 requires
that the exploitation and utilization of energy resources from that area are
explicitly covered by a law passed by Congress specifically for that purpose,
pursuant to Section 14 of Republic Act No. 7586 or the National
IntegratedProtected Areas System Act of 1992:
SEC. 14. Survey for Energy Resources.— Consistent with the policies
declared in Section 2, hereof, protected areas, except strict nature
reserves and natural parks, may be subjected to exploration only
for the purpose of gathering information on energy resources and only
 if such activity is carried out with the least damage to surrounding
areas. Surveys shall be conducted only in accordance with a program
approved by the DENR, and the result of such surveys shall be made
available to the public and submitted to the President for
recommendation to Congress. Any exploitation and
utilization of energy resources found within NIPAS areas shall be
allowed only through a law passed by Congress.40 (Emphasis
supplied)
No law was passed by Congress specifically providing the standards,
terms, and conditions of an oil exploration, extraction, and/or utilization
for Tañon Strait and, therefore, no such activities could have been validly
undertaken under SC-46. The National Integrated Protected Areas System
Act of 1992 is clear that exploitation and utilization of energy resources in
a protected seascapesuch as Tañon Strait shall only be allowed through a
specific law.
VIII
Former President Gloria Macapagal-Arroyo was not the signatory to
SC-46, contrary to the requirement set by paragraph 4 ofArticle XII, Section 2
for service contracts involving the exploration of petroleum. SC-46 was
entered into by then Department ofEnergy Secretary Vicente S. Perez, Jr., on
behalf of the government. I agree with the Main Opinion that in cases
where theConstitution or law requires the President to act personally
on the matter, the duty cannot be delegated to another public official. 41La
Bugal highlights the importance of the President's involvement, being
one of the constitutional safeguards against abuse and corruption, as not
mere formality:
At this point, we sum up the matters established, based on a careful
reading of the ConCom deliberations, as follows:
• In their deliberations on what was to become paragraph
4, the framers used the term service contracts in referring
toagreements ...involving either technical or financial
assistance.
• They spoke of service contracts as the concept was understood
in the 1973 Constitution.
• It was obvious from their discussions that they were not about to
ban or eradicate service contracts.
• Instead, they were plainly crafting provisions to put in place
safeguards that would eliminate or minimize the abuses
prevalent during the marital law regime.42 (Emphasis
in the original)
 Public respondents failed to show that Former President Gloria
Macapagal-Arroyo was involved in the signing or execution ofSC-
46. The failure to comply with this constitutional requirement renders SC-46
null and void.
IX
Public respondents also failed to show that Congress was subsequently
informed of the execution and existence of SC-46.The reporting requirement
is an equally important requisite to the validity of any service contract
involving the exploration, development, and utilization of Philippine petroleum.
Public respondents' failure to report to Congress about SC-46 effectively took
away any opportunity for the legislative branch to scrutinize its terms and
conditions.
In sum, SC-46 was executed and implemented absent
all the requirements provided under paragraph 4 of Article XII, Section 2. It is,
therefore, null and void.
X
I am of the view that SC-46, aside from not having complied
with the 1987 Constitution, is also null and void for being
violativeof environmental laws protecting Tañon Strait. In particular, SC-46
was implemented despite falling short of the requirements of theNational
Integrated Protected Areas System Act of 1992.
As a protected seascape under Presidential Decree No.
1234, 43 Tañon Strait is covered by the National Integrated ProtectedAreas
System Act of 1992. This law declares as a matter of policy:
SEC. 2. Declaration of Policy. — Cognizant of the profound
impact of man's activities on all components of the natural environment
particularly the effect of increasing population, resource exploitation
and industrial advancement and recognizingthe critical
importance of protecting and maintaining the natural biological and
physical diversities of the environment notably on areas with
biologically unique features to sustain human life and development, as
well as plant and animal life, it is hereby
declared the policy of the State to secure for the Filipino
people of present and future generations the perpetual existence of all
native plants and animals through the establishment of a
comprehensive system of integrated protected areas
within theclassification of national park as provided for
in the Constitution.
It is hereby recognized that these areas, although distinct in
features, possess common ecological values that may be incorporated
into a holistic plan representative of our natural heritage; that effective
 administration of these areas is possible only through cooperation
among national government, local and concerned private
organizations; that the use and enjoyment ofthese protected areas
must be consistent with the principles of biological diversity and
sustainable development.
To this end, there is hereby established a National
Integrated Protected Areas System (NIPAS),which shall encompass
outstanding remarkable areas and biologically important public lands
that are habitats of rare and endangered species of plants and
animals, biogeographic zones and related ecosystems, whether
terrestrial, wetland or marine, all of which shall be designated as
"protected areas." 44 (Emphasis supplied)
Pursuant to this law, any proposed activity in Tañon Strait must
undergo an Environmental Impact Assessment:
SEC. 12. Environmental Impact Assessment. — Proposals for
activities which are outside the scope of the management plan
for protected areas shall be subject to an environmental impact
assessment as required by law before they are adopted, and theresults
thereof shall be taken into consideration in the decision-making
process.45 (Emphasis supplied)
The same provision further requires that an Environmental Compliance
Certificate be secured under the Philippine Environmental Impact Assessment
System before any project is implemented:
No actual implementation of such activities shall be allowed
without the required Environmental Compliance Certificate (ECC)
under the Philippine Environment Impact Assessment (EIA) system.In
instances where such activities are allowed to be
undertaken, the proponent shall plan and carry them out in such
manner as will minimize any adverse effects and take preventive and
remedial action when appropriate.The proponent shall be liable for any
damage due to lack of caution or indiscretion. 46(Emphasis supplied)
In projects involving the exploration or utilization of energy
resources, the National Integrated Protected Areas System
Act of1992 additionally requires that a program be approved
by the Department of Environment and Natural Resources, which shall be
publicly accessible. The program shall also be submitted to the President,
who in turn will recommend the program to Congress. Furthermore, Congress
must enact a law specifically allowing the exploitation of energy resources
found within a protected area such as Tañon Strait: cSaATC

SEC. 14. Survey for Energy Resources. — Consistent with the policies
declared in Section 2, hereof, protected areas, except strict nature
reserves and natural parks, may be subjected to exploration only
 for the purpose of gathering information on energy resources and only
if such activity is carried out with the least damage to surrounding
areas. Surveys shall be conducted only in accordance with a program
approved by the DENR, and the result of such surveys shall be made
available to the public and submitted to the President for
recommendation to Congress. Any exploitation and
utilization of energy resources found within NIPAS areas shall be
allowed only through a law passed by Congress.47 (Emphasis
supplied)
Public respondents argue that SC-46 complied with the procedural
requirements of obtaining an Environmental Compliance Certificate. 48 At any
rate, they assert that the activities covered by SC-46 fell under Section
14 of the National Integrated ProtectedAreas System Act of 1992, which they
interpret to be an exception to Section 12. They argue that the Environmental
Compliance Certificate is not a strict requirement for the validity of SC-46
since (a) the Tañon Strait is not a nature reserve or natural park;
(b)the exploration was merely for gathering information; and (c) measures
were in place to ensure that the exploration caused theleast possible damage
to the area. 49
Section 14 is not an exception to Section 12, but instead provides
additional requirements for cases involving Philippine energy
resources. The National Integrated Protected Areas System Act of 1992 was
enacted to recognize the importance ofprotecting the environment in
light of resource exploitation, among others. 50 Systems are put in place to
secure for Filipinos local resources under the most favorable conditions.
With the status of Tañon Strait as
a protected seascape, the institution of additional legal safeguards is even
more significant.
Public respondents did not validly obtain an Environmental Compliance
Certificate for SC-46. Based on the records, JAPEX commissioned an
environmental impact evaluation only in the second sub-phase of its project,
with the Environmental Management Bureau of Region VII
granting the project an Environmental Compliance Certificate on March 6,
2007. 51 Despite its scale, the seismic surveys from May 9 to 18, 2005 were
conducted without any environmental assessment contrary to Section
12 ofthe National Integrated Protected Areas System Act of 1992.
XI
Finally, we honor every living creature when we take care of our
environment. As sentient species, we do not lack in thewisdom or sensitivity
to realize that we only borrow the resources that we use to survive and to
thrive. We are not incapable ofmitigating the greed that is slowly
causing the demise of our planet. Thus, there is no need for us to feign
 representation of any other species or some imagined unborn generation in
filing any action in our courts of law to claim any of our fundamental rights to a
healthful ecology. In this way and with candor and courage, we fully
shoulder the responsibility deserving of the grace and power endowed on our
species.
ACCORDINGLY,I vote:
(a) to DISMISS G.R. No. 180771 for lack of standing and STRIKE
OUT the name of Former President Gloria Macapagal-Arroyo
from the title of this case;
(b) to GRANT G.R. No. 181527; and
(c) to DECLARE SERVICE CONTRACT 46 NULL AND VOID for
violating the 1987 Constitution, Republic Act No. 7586,
andPresidential Decree No. 1234.
(Resident Marine Mammals of the Protected Seascape Tañon Strait v. Reyes,
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G.R. Nos. 180771 & 181527, [April 21, 2015])