HERNANDO, J.:
The Petition for Writ of Kalikasan before the CA |
5. At present, Public Respondent MWSS is using a combined drainage sewerage system, operated without the necessary permits from the Department of Environment and Natural Resources and/or the Department of Health. With a combined drainage sewerage system, rainwater and raw sewage are collected in a single pipe system. In these systems, when there is more rainwater than the system can handle, a mixture of raw sewage and rainwater goes directly from the sewer system to a body of water without having first been treated. It is the same as dumping highly toxic raw sewage into a natural body of water, an act prohibited by law.WARM asserted that sometime in 2007, from the Business Plans submitted by MANILA WATER and MAYNILAD to the MWSS-Regulatory Office (MWSS-RO),[19] the concessionaires indicated that they would implement a Combined Drainage System for the collection of raw sewage and rainwater.[20] According to WARM, at separate meetings, both MANILA WATER and MAYNILAD manifested to the MWSS-RO that the intended combined drainage sewerage project is compliant with DENR requirements, and that an Environmental Clearance Certificate (ECC) will be secured.[21]
x x x x
8. At the heart of this Petition are the following laws on the environment that are being violated by the Respondents' installation of a combined drainage sewerage system and usage of only the antiquated Septic Tank Dislodging System (like the Malabanan Poso Negro Higop System where a third party plumbing service provider is hired to siphon septic waste) for unsewered consumers; this septic tank system is cheaper and proven to be unsound; worse, the costs even for this faulty system passed on (in advance) to all water consumers are larger than what they should be; all without any approval or permit from the Secretary of Health or the Secretary of the Environment and Natural Resources; and inaction with regard to the dumping of raw sewage into the waters surrounding Manila: (a) Section 4,[11] Presidential Decree No. 1151, (Philippine Environmental Policy); (b) Sections 72 to 74,[12] Code on Sanitation of the Philippines, Presidential Decree No. 856; (c) Article 75[13] of the Water Code of the Philippines (Presidential Decree No. 1067); (d) Sections 8,[14] 27(a)[15] and 27(e)[16] of the [Philippine] Clean Water Act of 2004, Republic Act No. 9275; and (e) The Writ of Continuing Mandamus as issued by the Supreme Court in MMDA V. Concerned Citizens of Manila Bay,[17] x x x, and further delineated by the Supreme Court in its [subsequent] Resolution dated February 15, 2011.[18] (Emphasis in the original).
Ruling of the Court of Appeals
- The danger to the environment involved in implementing a combined drainage sewerage system, which, when considering the variance in rainfall between peak and minimum conditions, all but guarantees the continued dumping of raw sewage into the waters of Manila and its environs; and
- The collection of environmental and/or sanitation charges from consumers that does not actually go into actual remediation of the environment, violates the Polluter Pays Principle in Environmental Law.[24]
1. The personal circumstances of the petitioner and its personality to file the suit was not shown. [WARM] claims to be a non-stock non-profit corporation and is thus suing as a juridical person but evidence of its incorporation was not attached to the petition. Even if We consider it as an organization of citizens who are consumers of MWSS, there is no proof of its accreditation or registration with any government agency as required in Section 1, Rule 7 of the Rules of Procedure for Environment Cases;In the main, the appellate court ruled that WARM failed to establish the requisites for the issuance of a Writ of Kalikasan.
2. It is unclear whether the combined sewerage system is already opening or is only among the projected business plan of respondents and the areas where the alleged combined sewerage system would be/has been installed were not sufficiently identified;
3. Sections 72 to 74 of the Code of Sanitation [do] not prohibit the installation of a combined sewerage system for storm water and sanitary sewage;
4. The main violation contemplated in the petition is the absence of approval from the Department of Health, Environmental Management Bureau of the Department of Environment and Natural Resources and the failure to secure an Environmental Impact Statement in respondents['] attempt to install and operate a combined drainage sewerage systems (sic). However, the relation of [these] alleged violations to the purported environmental damages was not established;
5. [WARM] neither cited nor appended in their petition any scientific or other expert studies linking the combined sewerage system to the alleged damage to the environment;
6. The prayer for complete accounting of environmental fees and the cessation of its collection is not within the ambit of the Writ of Kalikasan;
7. The violation of the Continuing Writ of Mandamus is better addressed to the Supreme Court which exercises continuing jurisdiction over the agencies involved therein until full compliance with the Supreme Court's Order has been shown.
x x x x
WHEREFORE, the petition for issuance of a Writ of Kalikasan is DISMISSED without prejudice to the filing of any appropriate civil, criminal or administrative remedies warranted by the relevant circumstances.[25]
1. The Court of Appeals failed to apply acknowledged principles of environmental law in failing to recognize the legal wrong and actual damage being caused by the herein Respondents; the Precautionary Principle requires this Honorable Court to require evidence from the herein Respondents that all environmental laws are complied with and that no environmental harm is visited upon the herein Petitioner.For the first time, WARM asserts the application of the Precautionary Principle for the issuance of the Writ of Kalikasan. WARM propounds that with the threat to human life or health, "the Court of Appeals should not have insisted on a more stringent demonstration of the environmental harm brought about by the herein [r]espondents' failure to install a proper sewerage system as required under law."[29] Essentially, WARM claims that respondents' violations of various environmental laws could veritably result in environmental damage contemplated by the Writ of Kalikasan.
2. The Court of Appeals failed to recognize the application of the environmental laws, rules, and regulations that the herein Respondents presently violate, namely: (a) Section 4, Presidential Decree No. 1151, Sections 72 to 74 of Presidential Decree No. 856 (Code on Sanitation of the Philippines), and Article 75 of the Water Code of the Philippines, all in relation to Section 8, 27(a) and 27(e) of Republic Act No. 9275 (The Clean Water Act of 2004); and (b) The Writ of Continuing Mandamus as issued by the Supreme Court in MMDA v. Concerned Citizens of Manila Bay, G.R. Nos. 171947-48, December 18, 2008, and further delineated by the Supreme Court in its Resolution dated February 15, 2011. The Court of Appeals also disregarded the herein Respondents' operation of a combined sewerage system an Environmental Clearance Certificate (ECC) prior to the commencement of any operation of a combined sewerage system (sic).
3. The Court of Appeals failed to recognize the existence of any environmental damage caused by the dumping of raw sewage in times of heavy rain, notwithstanding its pronouncements in its Decision in C.A. G.R. SP No. 112023, as well as a certification from the Philippine Medical Association confirming the dangers therein, an error made more egregious by coming to such a conclusion without hearing on the same.
4. The Court of Appeals failed to recognize that the herein Respondents' failure to properly operate and maintain a sewerage system over its service contract area in accordance with recognized environmental standards is in and of itself a violation of an environmental law that may be remedied by the issuance of a Writ of Kalikasan.
5. The Court of Appeals failed to recognize that the herein Respondents' failure to comply with this Honorable Court's Continuing Writ of Mandamus is in and of itself a violation of an environmental law that may be remedied through the issuance of a Writ of Kalikasan; assuming arguendo that such is the case, now that this instant dispute is before this Honorable Court, jurisdiction over the same cannot now be denied.
6. The Court of Appeals failed to find the existence of a situation of such extreme urgency, grave injustice, and irreparable injury that justifies the issuance of a Temporary Environmental Protection Order, when the dangers of wading in sewage-contaminated floodwater that threatens the steps of this Honorable Court and the Court of Appeals may be taken by judicial notice.[28]
The consolidated cases of G.R. Nos. 202897, 206823, and 207969: |
A Writ of Kalikasan and the Precautionary Principle vis-à-vis the constitutional right to a balanced and healthful ecology |
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, nongovernmental 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.It is categorized as a special civil action and conceptualized as an extraordinary remedy; it covers environmental damage of such magnitude that will prejudice the life, health or property of inhabitants in two or more cities or provinces. It is available against an unlawful act or omission of a public official or employee, or a private individual or entity.[43]
Section 2. Contents of the petition. — The verified petition shall contain the following:WARM'S evidence pale against the foregoing requirements. Notably, its evidence consists of bare allegations of a supposed implementation by respondents of a combined drainage-sewerage system without the necessary permits, and the resulting environmental damage therefrom. It glaringly did not present evidence of the following: (1) the existence and specific technical aspect of such a combined drainage-sewerage system; (2) how a combined drainage-sewerage system is objectionable per se; (3) the operation thereof without the necessary permits under Presidential Decree (PD) Nos. 1151 and 1586; and (4) the causal link between the operation of the combined drainage-sewerage system to the resulting environmental damage.
(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.Under the guise of claiming environmental damage and harm, WARM and other parties praying for the issuance of a Writ of Kalikasan must not expect courts of law to ascertain environmental damage where none is alleged, much less proven. The possibility of irreversible and serious harm is not established by obsolete and irrelevant data such as that presented in this case.
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.[51]
The function of the extraordinary and equitable remedy of a Writ of Kalikasan should not supplant other available remedies and the nature of the forums that they provide. The Writ of Kalikasan is a highly prerogative writ that issues only when there is a showing of actual or imminent threat and when there is such inaction on the part of the relevant administrative bodies that will make an environmental catastrophe inevitable. It is not a remedy that is availing when there is no actual threat or when imminence of danger is not demonstrable. The Writ of Kalikasan thus is not an excuse to invoke judicial remedies when there still remain administrative forums to properly address the common concern to protect and advance ecological rights.In Braga v. Abaya,[56] the Court denied the petition for a Writ of Continuing Mandamus and/or a Writ of Kalikasan for prematurity and lack of merit as petitioners therein objected to the concession of the Davao Sasa Wharf via a Public Private Partnership (PPP) Scheme. We ruled that:
Moreover, there are other legal remedies available:
The writ of kalikasan is not an all-embracing legal remedy to be wielded like a political tool. It is both an extraordinary and equitable remedy which assists to prevent environmental catastrophes. It does not replace other legal remedies similarly motivated by concern for the environment and the community's ecological welfare. Certainly, when the petition itself alleges that remedial and preventive remedies have occurred, the functions of the writ cease to exist. In case of disagreement, parties need to exhaust the political and administrative arena. Only when a concrete cause of action arises out of facts that can be proven with substantial evidence may the proper legal action be entertained.[55]
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 unlawful 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 warrant the issuance of the writ.Third. Based on the principle of exhaustion of administrative remedies and its corollary doctrine of primary jurisdiction, the appellate court correctly dismissed WARM's petition for a Writ of Kalikasan.
The petitioners allege that the respondents have begun the process of transgressing their right to health and a balanced ecology through the bidding process. They cite The Competitiveness of Global Port-Cities: Synthesis Report 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 severe consequences for the health of the population of the port city, especially for the poorer parts of port cities."
The petitioners also cite Managing Impacts of Development in the Coastal Zone, a joint publication of the DENR, the Bureau of Fisheries and Aquatic Resources (BFAR), the Department of the Interior and Local Government (DILG), and the DENR Coastal Resource Management Project (CRMP) that identified the effects of coastal construction and reclamation, including ports and offshore moorings. The petition alleges that: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."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.
x x x x
Moreover, this Court does not have the technical competence to assess the Project, identify the environmental threats, and weigh the sufficiency or insufficiency of any proposed mitigation measures. This specialized competence is lodged in the DENR, who acts through the EMB in the EIA process. As we have already established, the application of the EIS System is premature until a proponent is selected.
Further, we fail to see an environmental risk that threatens to prejudice the inhabitants of two or more cities or municipalities if we do not restrain the conduct of the bidding process. The bidding process is not equivalent to the implementation of the project. The bidding process itself cannot conceivably cause any environmental damage.
Finally, it is premature to conclude that the respondents violated the conditions of Resolution No. 118 issued by the Regional Development Council of Region XI. Notably, the Resolution requires compliance before the implementation of the project. Again, the project has not yet reached the implementation stage.[57] (Emphasis supplied)
The general rule is that before a party may seek the intervention of the court, he should first avail of all the means afforded him by administrative processes. The issues which administrative agencies are authorized to decide should not be summarily taken from them and submitted to a court without first giving such administrative agency the opportunity to dispose of the same after due deliberation.DENR DAO 2003-30,[59] the implementing rules and regulations of PD 1586 on the establishment of an Environmental Impact Statement System, provides for fines, penalties and sanctions, to wit:
Corollary to the doctrine of exhaustion of administrative remedies is the doctrine of primary jurisdiction; that is, courts cannot or will not determine a controversy involving a question which is within the jurisdiction of the administrative tribunal prior to the resolution of that question by the administrative tribunal, where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact.[58] (Citations omitted.)
SECTION 16. Fines, Penalties And Sanctions. —Plainly, WARM could have availed of this administrative remedy to assail respondents' operation of a combined drainage-sewerage system allegedly without the necessary permits to be issued by the DENR.
The EMB Central Office or Regional Office Directors shall impose penalties upon persons or entities found violating provisions of P.D. 1586, and its Implementing Rules and Regulations. Details of the Fines and Penalty Structure shall be covered by a separate order.
The EMB Director or the EMB-RD may issue a Cease and Desist Order (CDO) based on violations under the Philippine EIS System to prevent grave or irreparable damage to the environment. Such CDO shall be effective immediately. An appeal or any motion seeking to lift the CDO shall not stay its effectivity. However, the DENR shall act on such appeal or motion within ten (10) working days from filing.
The EMB may publish the identities of firms that are in violation of the EIA Law and its Implementing Rules and Regulations despite repeated Notices of Violation and/or Cease and Desist Orders.
a. Construction of any approved type of toilet for every house including community toilet which may be allowed for a group of small houses of light materials or temporary in nature;SECTION 73. Operation of Sewage Treatment Works. — Private or public sewerage systems shall:
b. Plans of individual sewage disposal system and the sub-surface absorption system, or other treatment device;
c. Location of any toilet or sewage disposal system in relation to a source of water supply;
d. Plans, design data and specifications of a new or existing sewerage system or sewage treatment plant;
e. The discharge of untreated effluent of septic tanks and/or sewage treatment plants to bodies of water;
f. Manufacture of septic tanks; and
g. Method of disposal of sludge from septic tanks or other treatment plants.
a. Provide laboratory facilities for control tests and other examinations needed;SECTION 74. Requirements in the Operation of Sewerage Works and Sewage Treatment Plants. — The following are required for sewerage works and sewage treatment plants. cdtai
b. Forward to the local health authority operating data, control tests and such other records and information as may be required;
c. Inform the local health authority in case of break-down or improper functioning of the sewage treatment works; and
d. Provide for the treatment of all sewage entering the treatment plant.
a. All houses covered by the system shall be connected to the sewer in areas where a sewerage system is available.[13] ARTICLE 75. No person shall, without prior permission from the National Pollution Control Commission, build any works that may produce dangerous or noxious substances or perform any act which may result in the introduction of sewage, industrial waste, or any pollutant into any source of water supply.
b. Outfalls discharging effluent from a treatment plant shall be carried to the channel of the stream or to deep water where the outlet is discharged.
c. Storm water shall be discharged to a storm sewer, sanitary sewage shall be discharged to a sewerage system carrying sanitary sewage only; but this should not prevent the installation of a combined system.
d. Properly designed grease traps shall be provided for sewers from restaurants or other establishments where the sewage carries a large amount of grease.