OSG

REPUBLIC OF THE PHILIPPINES SUPREME COURT MANILA

PILIPINO BANANA GROWERS AND EXPORTERS ASSOCIATION, INC., ET AL., Petitioners-Appellees, - versus CITY OF DAVAO, ET AL., Respondent-Appellant, x-----------------------------------------------x G.R. No.

COMMENT FOR THE REPUBLIC OF THE PHILIPPINES

The Office of the Solicitor General, on behalf of the Republic of the Philippines, unto this Honorable Court, most respectfully states:

PRELIMINARY STATEMENT This is an appeal from the Decision dated January 9, 2009 of the Court of Appeals Cagayan de Oro City, which reversed and set aside the September 22, 2007 Decision of Branch 17 of the Regional Trial Court of Davao City. The dispositive portion of the decision reads: WHEREFORE, premises considered, the appeal is GRANTED. The assailed September 22, 2007 Decision of the Regional Trial Court (RTC), 11th Judicial Region, Branch 17, Davao City, upholding the validity and constitutionality of Davao

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City Ordinance No. 0309-07, is hereby REVERSED and SET ASIDE. FURTHER, the Writ of Preliminary Injunction dated 28 January 2008 enjoining the City Government of Davao, and any other person or entity acting in its behalf, from enforcing and implementing City Ordinance No. 0309-07, is hereby made permanent. SO ORDERED. (CA Decision, p. 43) In its brief, respondent-appellant assails the Court of Appeals in rendering the questioned decision on the following grounds:

I THE COURT OF APEALS ERRED IN RULING THAT THE THREE-MONTH PERIOD CONSTITUTES UNLAWFUL MEANS II THE COURT OF APPEALS ERRED IN RULING THAT THERE WAS FORFEITURE OF PROPERTY WITHOUT DUE PROCESS OF LAW III THE COURT OF APPEALS ERRED THAT THERE WAS VIOLATION OF EQUAL PROTECTION BECAUSE OF FAILURE TO MAKE A DISTINCTION AS TO THE KIND OF SUBSTANCE IV

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THE COURT OF APPEALS ERRED IN RULING THAT THE NATURE OF THE GENERAL WELFARE CLAUSE OF THE LOCAL GOVERNMENT CODE REQUIRED ACTUAL HARM

ANTECEDENT FACTS AND PROCEEDINGS

The facts, as determined by the Court of Appeals1, are as follows:

On January 23, 2007, the Sangguniang Panlungsod of Davao enacted Ordinance No. 0309-07, Series of 2007, entitled AN ORDINANCE BANNING AERIAL SPRAYING AS AN AGRICULTURAL PRACTICE IN ALL AGRICULTURAL ACTIVITIES BY ALL

AGRICULTURAL ENTITIES IN DAVAO CITY.

Ordinance No. 0309-07 was approved by the Mayor of Davao City on February 9, 2007, and took effect on March 23, 2007, presumably thirty (30) days from its publication in the Mindanao Pioneer. Pursuant to Section 5 thereof, the Ordinance was to be enforced starting June 23, 2007, three (3) months after such effectivity.

CA Decision, dated January 9, 2009

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On April 25, 2007, Pilipino Banana Growers and Exporters Association, Inc (PBGEA), a non-stock corporation composed of corporate banana plantations, and two (2) of its members, the Davao Fruits Corporation and the Lapanday Agricultural and Development Corporation, filed before the trial court a Petition (With Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction), which case was docketed as Civil Case No. 31,837-2007 for injunction.

The City of Davao was impleaded as the lone respondent in the petition. However, on May 8, 2007, a Motion for Leave to Intervene and Opposition to the Issuance of a Preliminary Injunction was filed by herein intervenors-appellants Wilfredo Mosqueto, Marcelo Villaganes, Crispin Alcomendras, Corazon Sabinada, Geraldine Catalan, Julieta Lawagon, Rebecca

Saligumba, Florencia Sabandon, Carolina Pilongo, Alejandra Bentoy, Ledevina Adlawan, and Virgina Cata-ag, invoking their constitutional rights to health and to a healthful and balanced ecology.

On May 21, 2007, petitioners-appellees opposed the motion to intervene because intervenors-appellants failed to show their alleged right to intervene, and that the motion was pro forma as

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it did not contain a notice of hearing. They also alleged that the motion was insufficient in form and substance since it was not accompanied by a pleading-in-intervention. Intervenors-

appellants filed their Answer-in-Intervention on May 22, 2007.

On May 28, 2007, respondent-appellant filed an Answer arguing the validity of Ordinance 0309-07 and praying that the petition be dismissed for lack of merit. On June 4, 2007, the trial court issued an Order granting the motion to intervene and admitting appellants. the Answer-in-Intervention filed by intervenors-

Petitioners-appellees Motion for Reconsideration

thereof was denied in an Order dated June 20, 2007.

In a separate Order also dated June 20, 2007, the trial court granted petitioners-appellees application for a writ of preliminary injunction against the actual enforcement on June 23, 2007 of the aerial spraying ban, finding that the period of three months is unreasonable and/or physically impossible for contrary parties to adopt measures in opting to follow said ordinance in going into other spraying method. Thus, in its June 25, 2007 Order, the trial court enjoined respondent-appellant and intervenors-appellants from enforcing Ordinance 0309-07 for a period of three (3) months, from June 23, 2007 to September 23, 2007.

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The case was referred to mediation before the Philippine Mediation Center. Mediation between the parties eventually failed. The pre-trial conference proceeded on August 14, 2007 where petitioners-appellees and intervenors-appellants admitted, among others, that fungicides were aerially sprayed over banana plantations to contain the proliferation thereon of the Black Sigatoka fungus. The Pre-trial Order was issued on September 3, 2007.

Trial commenced on September 10, 2007 and proceeded until the case was submitted for decision pursuant to the trial courts September 21, 2007 Order. On September 22, 2007, the trial court rendered a Decision which disposed of the case as follows: WHEREFORE, finding the subject ordinance No. 0309-07 valid and constitutional in all aspect (sic) of the grounds assailed by the petitioner, said city ordinance No. 0309-07 is sustained of its validity and constitutionality. Accordingly, the order of this court dated June 20, 2007, granting the writ of preliminary injunction as prayed for by petitioner is ordered canceled and set aside as a result of this decision. SO ORDERED.

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On September 25, 2007, petitioners-appellees filed a Notice of Appeal to the Court of Appeals. On January 9, 2009, the Court of Appeals rendered the assailed Decision reversing the decision of the trial court.

As a result of the timely appeal of herein respondentappellant and the assumption of jurisdiction by this Honorable Court, the Office of the Solicitor General was hereby ordered to file a Comment for the proceedings in the Supreme Court.

ARGUMENTS

I. The Court of Appeals erred in ruling that the threemonth period constitutes unlawful means Subject of this discussion is Section 5 of the challenged Ordinance, which states: Section 5. BAN ON AERIAL SPRAYING A ban on aerial spraying shall be strictly enforced in the territorial jurisdiction of Davao City three (3) months after the effectivity of this Ordinance. In ruling that the three-month interim period from the effectivity of the Ordinance to its strict implementation is

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unreasonable, oppressive and impossible to comply with, the Court of Appeals gave undue credence to the self-serving evidence presented by the petitioners-appellees to the effect that the other alternatives to aerial spraying would either need a longer time to effect an actual shift, and/or would pose serious detriments to their businesses and laborers.

Before proceeding with the discussion, it must be stressed that Davao Citys Ordinance 0309-07 enjoys the presumption of validity accorded to the acts of the Legislature. There being a presumption of validity, the necessity for evidence to rebut it is unavoidable, unless the statute or ordinance is void on its face. 2 When the constitutionality of such act is challenged, the burden of proving beyond reasonable doubt that the ordinance is unconstitutional rests on petitioners-appellees' shoulders, a burden which they sorely failed to discharge in the present petition.

The tests of a valid ordinance are well established. For an ordinance to be valid, it must not only be within the corporate powers of the LGU to enact and be passed according to the procedure prescribed by law, it must also conform to the
2

Samson and Gavilan v. The Hon. City Mayor of Bacolod City and the Hon City Council of Bacolod City, G.R. No. L-28745 October 23, 1974

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following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy and (6) must not be unreasonable.3 The evidence presented by the petitioners-appellees, as will be discussed later, falls short in proving that the subject Ordinance does not conform to such substantive requirements.

Further, the City of Davao has consistently contended that the enactment of Ordinance 0309-07 is an exercise of its police power. As regards such exercise, the applicable doctrine is that local governments may be considered as having properly exercised their police power only if the following requisites are met: (1) the interest of the public generally, as distinguished from those of a particular class, require its exercise and (2) the means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. In short, there must be a concurrence of a lawful subject and a lawful method.4

3 4

Social Justice Society vs. Atienza, G.R. No. 156052, 13 February 2008. SJS v Atienza, ibid.

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The Court of Appeals has squarely ruled that it is within the mandate and authority of the City of Davao to enact Ordinance No. 0309-07 since it is a measure that has an ostensible lawful subject, that is, the protection of the public health and the environment against the alleged harmful effects of aerial spraying of pesticides or fungicides.5 Thus, the main point of contention herein is whether or not the same Ordinance makes use of unlawful means to achieve its purpose.

In the case at hand, petitioners-appellees alleged that the imposition of the three-month period constitutes an unlawful means for the exercise of police powerthat it is oppressive, unreasonable and impossible to comply with thus making the Ordinance void and unconstitutional. To bolster their claim, petitioners-appellees presented the testimonies of PBGEA

Chairperson Dr. Maria Rita G. Fabregar, Engr. Magno P. Porticos and CPA Maria Victorina Cembrano. The testimonies of the first two witnesses were relied on to establish that a complete shift to truck-mounted spraying, allegedly the least harmful and most efficient alternative to aerial spraying, would take at least three (3) years, while the testimony of the last witness was cited to prove the high capital requirement for the shift to truck-mounted

CA Decision, dated January 9, 2009, p. 14

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spraying and that the other forms of spraying, namely manual or back-pack spraying and sprinkler spraying, would pose

insurmountable consequences to the business and its laborers. To this, an additional witness was presented, Dr. Anacleto Pedrosa, Jr., who testified that a shift to manual or backpack spraying or sprinkler spraying would imperil not only banana production but also the health of workers because the same are the least safe and least efficient methods of spraying. The witness explained that the workers will be drenched with the water solution which might prove detrimental to their health and that this would require a larger volume of water, pesticides and fungicides.

While such concern for the health of their workers is worthy of praise, it is virtually an admission that continued exposure to the water solution creates a health risk among those exposed. True, aerial spraying only causes indirect exposure but its reach is more widespread. More people are exposed to the harmful pesticides and fungicides, and over time, the toxins would accumulate, causing health problems to the hundreds of people exposed. This is not to say that we should sacrifice the lives of the plantation laborers in exchange for the well-being of entire towns. What we advocate is for a more effective and efficient way

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to limit the adverse effects. It is common sense that it is easier to manage health risks when only a few people are exposed to the contaminant. It is especially true in this case wherein the only people who are exposed to the chemicals (i.e. plantation workers) are also under the direct control of those who will eventually be liable for the injuries they may sustain from the continued exposure. This will create direct accountability and an incentive for the plantation owners to take the necessary precautions to avoid or minimize their workers exposure to chemicals, such as using masks, goggles, gloves and protective/impenetrable

clothing.

As to the feasibility of the alternative spraying methods, there is an absolute dearth of evidence that manual or backpack spraying and sprinkler spraying cannot be implemented within three months. There is no showing that there is a lack of manpower or unavailability of equipment and protective gear. There is no evidence as to the impossibility of obtaining the necessary funds to shift to these methods. Even the evidence presented as to the feasibility of truck-mounted boom spraying is not enough to show that it is absolutely impossible to effect the shift. As discussed in the Dissenting Opinion of Justice Borja, to which we fully subscribe to, temporal and logistical constraints

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are overcome if sufficient financial resources are committed to the undertaking.6 Here, there is no clear showing that petitionersappellees do not have sufficient financial resources to shift to truck-mounted spraying. They merely showed their unwillingness to part with the needed amount. Moreover, it was not proven that the inefficiencies created (i.e. need for more water pesticides and fungicides, uneven application) would be so great as to amount to oppression or prohibition of trade. While the shift may result to fewer yield and profits for the plantation owners, such is not enough to declare the Ordinance invalid especially when the health benefits to a greater number of city residents clearly outweigh the business losses.

Besides, Davao City is not the first to legislate against aerial spraying. The Provincial Boards of Bukidnon and North Cotabato have previously passed a similar legislations. This would at least prove that the technology and equipment needed for the alternative methods of spraying are readily available in the market.

Dated January 9, 2009

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Taking everything into consideration, it is clear that the Court of Appeals erred in ruling that the Ordinance is oppressive, unreasonable and impossible to comply with.

II. The Court of Appeals erred in ruling that there was forfeiture of property without due process of law Another point of contention is Section 6 of the Ordinance which states that all agricultural entities must provide for a thirty (30)-meter buffer zone within the boundaries of their agricultural farms/plantations. It is alleged that such provision constitutes unlawful taking of property, in violation of the due process clause.

It is a settled rule in our jurisprudence that not every taking is compensable, as it may be justified under the police power. 7 Property condemned under the exercise of police power is noxious or intended for a noxious purpose, such as a building on the verge of collapse, which should be demolished for the public safety, or obscene materials, which should be destroyed in the interest of public morals. The confiscation of such property is not compensable, unlike the taking of property under the power of
7

Cruz, Isagani, Constitutional Law (2003), p. 71

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expropriation, which requires the payment of just compensation to the owner.8

There is recognized wisdom in the Dissenting Opinion of Justice Brandeis, in Pennsylvania Coal Co. v Mahon,9 which states: Every restriction upon the use of property imposed in the exercise of the police power deprives the owner of some right theretofore enjoyed, and is, in that sense, an abridgment by the State of rights in property without making compensation. But restriction imposed to protect the public health, safety or morals from dangers threatened is not a taking. The restriction here in question is merely the prohibition of a noxious use. The property so restricted remains in the possession of its owner. The state does not appropriate it or make any use of it. The state merely prevents the owner from making a use which interferes with paramount rights of the public. Whenever the use prohibited ceases to be noxious as it may because of further changes in local or social conditions the restriction will have to be removed and the owner will again be free to enjoy his property as heretofore. In this case, even if the buffer zone regulation amounted to forfeiture of property, still the City of Davao cannot be faulted. The City merely exercised police power. The requirement of a buffer zone was imposed to avoid or minimize harm to the environment and inhabitants. The buffer zone must be planted
8 9

City of Baguio v NAWASA, 106 Phil. 144 (1959) 260 US 393 (1922)

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with diversified trees that grow taller than are usually planted and grown in the plantation to protect those within the adjacent fields, neighboring farms, residential area, schools, and

workplaces.10 Such regulation of the use of the land was clearly intended to avoid or minimize the health and environmental risks caused by using pesticides and fungicides, a valid subject of police power. It must be remembered that petitioners-appellees witness, Dr. Pedrosa, admitted the harmful effects of exposure to such chemicals. It was also admitted by the witnesses that even the alternative methods of spraying would still produce a spray drift that would result in indirect exposure of the nearby residents. As such, it is but reasonable for the City of Davao to ensure that the risks to its residents are minimized to the lowest possible extent, if not eradicated. Here, the maxim Salus populi est suprema lex finds application. The welfare of the greater people must be prioritized over the property rights of the plantation owners.

It is contended that the imposition of the 30-meter buffer zone without regard to the size of the landholdings or plantations constitutes a violation of the due process clause. Petitionersappellees, however, fail to see that the size of the landholding is

10

Section 3 (e), Definition of Terms, Ordinance No. 0309-07

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not relevant to what the City seeks to avoid. The size of the landholding does not alter the reach of the spray drift as this is purely governed by air/wind dynamics. The pesticide sprayed on the outermost trees of a small plantation would drift in the air for approximately the same distance outside the plantation border as would the pesticide sprayed on the outermost trees of a large plantation. Thus, it is of no moment that the Ordinance did not consider the size of the landholding in imposing the 30-meter buffer zone.

Besides, the buffer zone does not completely deprive the land owners of its beneficial use. The requirement is it that must be planted with diversified trees that grow taller than are usually planted and grown in the plantation. The owners can still plant fruit-bearing trees as long as they are taller than the banana trees in their plantation and are not sprayed by the pesticides as well. The ground area between the trees may still be used for other purposes like composting. The owners are not at all prohibited to find other productive use for the land as long as it is planted with taller trees. With proper planning and motivation, the buffer zone may still be of some beneficial use to its owner, thus proving that the regulation of the land use does not amount to indiscriminate and compensable taking.

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One last thing, it must be noted that petitioners-appellees are already required to maintain a buffer zone as a condition to its operations, as imposed by the Department of Environment and Natural Resources. Unless they admit that they are not complying with the conditions imposed under their current DENR permits, the imposition of the buffer zone in the Ordinance would not amount to taking because the property in question is already devoted to such use as the regulation seeks to impose. III. The Court of Appeals erred that there was violation of equal protection because of failure to make a distinction as to the kind of substance The Court of Appeals held that Ordinance No. 0309-07 is violative of the Equal Protection Clause of the 1987 Constitution because of the sweeping ban imposed on aerial spraying regardless of the kind of substance that is to be discharged.

In the said ordinance, aerial spraying is defined as the application of substances through the use of aircraft of any form which dispenses the substances in the air. According to the

Court of Appeals, the ban encompasses aerial application application of practically all substances, not only pesticides or

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fungicides but including water and all forms of chemicals, regardless of its elements, composition or degree of safety.11 Since the ordinance does not classify which substances are prohibited from being sprayed aerially even if reasonable distinctions could be made according to the hazards posed or the beneficial effects, it was deemed to have been violative of the Equal Protection Clause of the.

There must also be a reasonable relation between the purposes of the policy measure and the means. Lack of such a reasonable relation will be deemed as arbitrary intrusion and is thus violative of the due process clause. The Court of Appeals held that the indiscriminate ban on aerial spraying without considering the substance to be discharged is not reasonably related to the public purpose which the ordinance aims to uphold.

It is the Solicitor Generals position that the questioned ordinance is not violative of the abovementioned Constitutional precepts.

In the first place, the Ordinance aims to uphold the health and safety of the residents of Davao City by addressing the

11

CA decision, dated January 9, 2009, p. 31

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problems brought about by air pollution.

It does so by

pinpointing the sources of air pollutants and such sources include the substances released through aerial spraying. Thus in a bid to prevent the air in the atmosphere from being filled with other substances than what is naturally present, the Ordinance seeks to ban aerial spraying as an agricultural practice.

The ban imposed is not indiscriminate as there is no need to impose classifications based on the nature of the substance along with their benefits and disadvantages. This is clearly seen in

terms of pesticides and fungicides which do not naturally occur in the air and are toxic and potentially harmful to the health of the Davao City residents. However, the respondents challenge the

validity of the prohibition with regard to the aerial spraying of water, vitamins and minerals since these substances are not harmful per se but are among those banned from being discharged through aerial spraying.

The issue at hand in the ordinance is the aerial spraying of pesticides and fungicides as an agricultural practice. Banana

planters in Davao City have been engaged in this business for approximately three or four decades and all this time, it has been their practice to aerially spray pesticides and fungicides. Thus it

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can be deduced that the term substance in the ordinance refers to pesticides and fungicides and not to any other substance. Vitamins, minerals, fertilizer or water are not included in the term substance since these are not the materials dispersed in aerial spraying as an agricultural practice in Davao City. Petitioners are not the proper parties to raise such an issue since they are not engaged in the aerial spraying of substances other than pesticides and fungicides in the first place. IV. The Court of Appeals erred in ruling that the nature of the general welfare clause of the local government code required actual harm The general welfare clause of the Local Government Code states: Section 16. General Welfare. - Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. (italics supplied)

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The Court of Appeals decision is adopting a wait-and-see attitude with regard to determining whether or not the pesticides and fungicides disperse through aerial spraying are indeed harmful to humans. Evidence was presented to bolster

arguments which uphold that the pesticides are not toxic as well as to support the claim that they indeed are harmful to a persons health and safety. The Court of Appeals held that the issue as to whether or not the practice of aerial spraying per se and the fungicides or pesticides applied on banana plantations are inimical to the public health and livelihood, and to the

environment has not been factually settled.12 For instance, the Court notes that the testimonies of the witnesses of respondent City of Davao illustrated how some residents of Davao City have been suffering from various ailments but these testimonies did not prove that the aerial spraying of substances is the proximate cause of the various ailments that they allegedly suffer.13

This stand is made by the Court despite its own admission that it is skeptical of the foregoing claims on the seemingly foolproof safety of pesticides or fungicides, both as chemical substances and in terms of human exposure to the same, since petitioners-appellant already admitted that the pesticides or
12 13

CA decision, dated January 9, 2009, p. 30 Ibid., p. 27

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fungicides they used would prejudice the health of their workers if manually sprayed. The admission would sensibly mean that

exposure to such substances, even in the diluted form, poses danger to the human health.14

The general welfare clause of the Local Government Code allows local government units to exercise powers essential for the promotion of, among others, health and safety of its residents. To promote health and safety does not mean providing remedies when certain events happen which would cause actual injury to the residents of the LGU in terms of their health and would imperil their lives. Promoting health and safety also means

preventing the occurrence of certain incidents which could logically endanger the residents health and could compromise their safety.

Ordinance No. 0309-07 was enacted by the City of Davao in accordance with the powers granted to it by the General Welfare Clause of the Local Government Code. The ordinance was meant to prevent residents from suffering the possible health effects of exposure to pesticides and fungicides dispersed through aerial spraying. Although there is a lack of significant scientific findings

14

Ibid.

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which can logically relate the ailments suffered by some residents to the aerial spraying of pesticides and fungicides, the fact remains that the toxicity of such fungicides and pesticides are deemed admitted by the petitioners themselves and the Court of Appeals. There is no need to wait for scientific findings to actually make the connection or for people to actually start suffering the harmful effects of pesticide and fungicide exposure. Promotion of health and safety encompasses not only protection from the dangers as they are present but also prevention of exposure to potentially hazardous situations. Withal, as the petitioners-appellees failed to overthrow the presumption of validity of Davao Citys Ordinance 0309-07, the appealed Decision must be vacated.

PRAYER

WHEREFORE, it is respectfully prayed that the Decision of January 9, 2009 in CA-G.R. CV. No. 01389-MIN be REVERSED and SET ASIDE, and judgment be rendered upholding the VALIDITY and CONSTITUTIONALITY of Ordinance No. 0309-07 of the City of Davao.

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Makati City, February 20, 2009.

JOANNA EILEEN CAPONES Assistant Solicitor General Roll No. xxxxx IBP Lifetime Roll No. xxxx AIDA ROSE VILLANUEVA Assistant Solicitor General Roll No. xxxxx IBP Lifetime Roll xxxx OFFICE OF THE SOLICITOR GENERAL 134 Amorsolo Street, Legaspi Village Makati City