Before this Court is a Petition for Review on
Certiorari[1] under Rule 45 of the Rules of Court (Rules) assailing the Decision
[2] dated April 26, 2013 and the Resolution
[3] dated August 14, 2013 of the Court of Appeals (CA) in CAG.R. SP. No. 00014 filed by petitioner Cynthia A. Villar (Villar).
Antecedents
In 2009, respondent Alltech Contractors, Inc. (Alltech) submitted
unsolicited proposals to respondent cities of Las Piñas and Parañaque
for the development, financing, engineering, design, and reclamation of
381.26 hectares of land in Las Piñas and 174.88 hectares of land in
Parañaque, which were both along the coast of Manila Bay.
[4] Consequently, the city councils of Las Piñas and Parañaque issued the corresponding resolutions
[5]
authorizing their respective city mayors to explore the proposal under a
Joint Venture Agreement (JVA), and to negotiate with the appropriate
government agencies and other local government units.
[6] The cities of Las Piñas and Parañaque eventually accepted Alltech's proposal and the parties executed their respective JVAs.
[7]
Thereafter, respondent Philippine Reclamation Authority (PRA), the
agency authorized to approve reclamation projects in the country,
approved the Las Piñas and Parañaque Coastal Bay Project (proposed
project) through Resolution No. 4088, Series of 2010
[8] and Resolution No. 4091, Series of 2010.
[9] The approval is subject to full compliance with existing laws, rules, and regulations in relation to the environment.
[10]
In March 2010, the PRA entered into separate Memoranda of Agreement (MOA) with the cities of Las Piñas and Parañaque.
[11]
On the other hand, Alltech, as directed by respondent Environmental
Management Bureau (EMB), submitted an Environmental Performance Report
Management Plan (EPRMP), for the proposed reclamation project to the
Department of Environment and Natural Resources (DENR).
[12]
In October 2010, the Environmental Impact Assessment Review Committee
(EIARC), composed of Agerico de Villa, Benjamin Francisco, and Renato
Cruz of the DENR-EMB, met for a preliminary review of the EPRMP
submitted. This meeting was also attended by Alltech representatives,
consultants of Mediatrix Business Consultancy who were commissioned by
Alltech to prepare its EPRMP, EMB case handlers, and resource persons
from the PRA.
[13]
In December 2010, Alltech submitted its final EPRMP
[14]
which now involved the reclamation of an estimated 203.43 hectares
along the coast of Paranaque and 431.71 hectares along the coast of Las
Piñas. The proposed project area lies within the 750-hectare project
site known as the Amari Coastal Bay Development Corporation (Amari) and
covered by Environmental Compliance Certificate (ECC) No.
CO-9602-002-208C which the Public Estates Authority (PEA; now PRA)
initially issued in September 1996.
[15]
After reviewing the biophysical, social, and economic impact of the
proposed project, the EIARC recommended the issuance of the ECC. On
March 24, 2011, the EMB issued ECC No. CO-1101-0001
[16] stating the following conditions:
I. CONDITIONS
ENVIRONMENTAL MANAGEMENT
All commitments, mitigating measures and monitoring requirements,
especially those contained in the EPRMP, particularly in the
Environmental Management and Monitoring Plans (EMMoPs), including all
their modifications and additional information as approved by the EMB,
shall be instituted to minimize any adverse impact of the project to the
environment throughout its implementation, including the following:
1. Implementation of a Coastal Ecosystem Management Plan/Program;
2. Undertake an effective and continuing Information, Education and
Communication (IEC) Program to inform and educate all stakeholders,
especially its local residents on the project's mitigating measures
embodied in the EPRMP and the conditions stipulated in this certificate;
3. Implementation of a Social Development and Management Program;
4. The Proponent needs to align the Environmental Management Plan with
the Manila Bay Coastal Strategy and submit the said revised plan within
sixty (60) days from the receipt of this Certificate; and
5. The Proponent, to address flooding issues, shall undertake the
consultation with the Local Government Units of Parañaque and Las Piñas
in the preparation of the Revised Environmental Management Plan that
shall include:
5.1 Flood Monitoring Plan
5.2 Necessary Baseline Data
5.3 Mitigating Plan; and
5.4 IEC corresponding flooding issues
The above requirements, together with the PRA Guidelines for Reclamation
Works should be submitted Ninety (90) days upon the receipt of this
Certificate.
GENERAL CONDITIONS
- The project operations shall conform with the provisions of R.A. No.
6969 (Toxic Substances and Hazardous and Nuclear Wastes Control Act of
1990), R.A. No. 9003 (Ecological Solid Waste Act of 2000), R.A. No. 9275
(Philippine Clean Water Act of 2004), and R.A. No. 8749 (Philippine
Clean Air Act of 1999) and other relevant environmental laws and
regulations.
- Proper storm drainage system, concrete culverts, and other
flood and erosion control measures needs, noise and air pollution
control measures shall be provided to adequately protect the receiving
water body from siltation, physicochemical/marine pollution, etc. and
the surrounding communities from environmental degradation;
- The proponent shall set up the following:
8.1 A readily available Environmental Guarantee Fund (EGF)
which can be replenished anytime to cover the following: a) Expenses for
further environmental assessments[,] b) compensation, indemnification
for whatever damages to life and property that may be caused by the
project[,] c) rehabilitation and/ or restoration of areas affected by
the project's implementation;
8.2 A Multi-partite Monitoring Team (MMT) composed of representative(s)
from the proponent, EMB, a local environmental Non-Government
Organization (NGO), a representative from each barangay in the primary
impact area, the LGUs where the project is situated, and other concerned
government agencies shall be organized. The MMT should primarily
oversee the compliance of the proponent with the Environmental
Management and Monitoring Plan (EMMP), other commitments and mitigation
measures that are contained in the Project EPRMP documents and the ECC
conditions; and
8.3 A replenishable Environmental Monitoring Fund (EMF) to cover all
costs attendant to the operation and monitoring activities of the MMT
including but not limited to capability building, training, actual
sampling and laboratory analysis. Said provisions must be consistent
with the DAO 2003-30.
The amount and mechanics of the EGF, EMF, and the establishment of the
MMT shall be determined by EMB and the proponent in consultation with
EMB, through an integrated Memorandum of Agreement (MOA) which shall be
submitted to the EMB Central Office within sixty (60) days upon receipt
of this Certificate;
9. An Environmental Unit (EU) shall be established completely handle the
environment related aspects of the project in addition to the
monitoring requirements as specified in the Environmental Management
Plan (EMP)/Environmental Monitoring Plan (EMoP). The EU shall:
9.1 Monitor actual project impacts [vis-a-vis] the predicted impacts and management measures in the EIS;
9.2 Ensure that Monitoring and submission of reports to EMB (Central Office and NCR) are carried out as required;
9.3 Submit an Abandonment Plan one year prior to abandonment. It shall
include rehabilitation measures/clean-up. Remediation of areas possibly
contaminated with toxic substances and presentation of options on
proposed alternative projects in the area; and
9.4 Submit the Geographical coordinates of the Project prior to project construction.
10. Ensure that its contractors and subcontractors properly comply with
the relevant conditions of this Certificate including those regulations
covering the entire activity of the project.
11. The proponent prior to project implementation shall coordinate with
the Manila Bay Critical Habitat Management Council and PAWB to tackle
impacts of the project to Las Piñas-Parañaque Critical Habitat and
Ecotourism Area (LPPCHEA) and implement the recommendations of the said
council.
II. RESTRICTIONS
12. No other activities should be undertaken other than what was
stipulated in the EPRMP document. Expansion of the project/construction
of other structures or any change in the activity beyond those stated in
the EPRMP shall be subject to a new Environmental Impact Assessment;
and
13. Transfer of Ownership of this project carries these same conditions
and restrictions for which written notification must be made by herein
grantee to EMB within fifteen (15) days from such transfer. [17]
Fcaring that the proposed project will impede the flow of rivers of Las
Piñas-Zapote and Parañaque which may expose several adjacent
barangays
to flooding and endanger its residents, then Representative Villar, now
Senator, conducted an information drive regarding the proposed project
and gathered 315,849 signatures of Las Piñas residents opposing the
proposed project. On March 16, 2012, Villar, representing the 315,849
Las Piñas residents opposing the proposed project, filed a petition for
the issuance of a writ of
kalikasan before the Court. In asking
the Court to enjoin the implementation of the proposed project, Villar
invoked her constituents' right to a balanced and healthful ecology.
On April 24, 2012, the Court rendered a Resolution issuing the writ
against respondents Alltech, PRA, DENR-EMB, and the cities of Las Piñas,
Parañaque, and Bacoor. On June 19, 2012, the Court remanded the case to
the CA to accept the return of the writ, and to conduct the necessary
hearing, reception of evidence, and rendition of judgment.
[18]
Ruling of the Court of Appeals
On April 26, 2013, the CA rendered its Decision,
[19] the dispositive portion of which states:
WHEREFORE, the petition is DENIED for lack of merit.
IT IS SO ORDERED.[20] (Emphasis in the original)
In denying the petition for the issuance of a writ of
kalikasan,
the CA declared that the totality of the evidence proved that the
proposed reclamation project underwent the required EIA review process
in compliance with the requirements of Presidential Decree (P.D.) No.
1586
[21] and that the submission of the EPRMP was proper and lawful.
[22]
The CA found the claim of Villar that Alltech did not undergo the
proper EIA review inaccurate because it submitted its EPRMP, a
recognized form of EIA study.
[23]
The CA held that Alltech's submission of its EPRMP was proper as it
belongs to the project category that requires such kind of EIA study.
The CA added that it was the DENR-EMB which instructed the submission of
an EPRMP.
[24] The CA pointed
out that in requiring an EPRMP, Alltech was even required to meet a
higher standard. This standard was to preserve the environmental
condition in the vicinity of the proposed project using as basis the
higher quality of environment in 1990.
[25]
The CA also ruled that a public consultation was conducted on November
25, 2010 between representatives of Alltech, the cities of Las Piñas and
Parañaque, the PRA, the EIA consultant and other identified
stakeholders in the direct and indirect impact areas of the proposed
project.
[26] The CA also
clarified that the nature of the proposed project does not require
conducting a public hearing. It is mandatory only in projects falling
under Category A-1 (new environmentally critical projects) pursuant to
DENR Administrative Order (DAO) No. 2003-30.
[27]
The CA ruled that Villar, though motivated by good faith, failed to
support her claim by any competent, credible, and reliable evidence that
the proposed reclamation project will expose Las Piñas and Parañaque
residents to catastrophic environmental damage. For the CA, Tricore
Solutions, Inc. (Tricore) and Center for Environmental
Concerns-Philippines (CEC-P), the companies commissioned by Villar,
failed to conduct a comprehensive and objective assessment of the
proposed project and lacked the expertise necessary in the field of
hydrology and hydraulics to competently conclude that the proposed
project will cause environmental damage.
[28]
The CA did not give credence to Tricore's report wherein it was
concluded that the proposed project would cause an increase in flood
depth and inundate two-thirds of Las Piñas, Parañaque, and Bacoor for
lack of sufficient basis.
[29]
For the CA, the findings in Tricore's report were refuted by Alltech who
was able to establish that measures were designed to mitigate the
dreaded negative impacts of the proposed project.
[30]
The CA also did not give credence to CEC-P's study. The CA noted that
CEC-P already had a conclusion in mind when it conducted its study at
Villar's behest as it deliberately ignored the ECC and the studies
conducted by DCCD Engineering Corp. (DCCD), Surbana International
Consultants PTE Ltd. (Surbana), and DHI Water & Environment (S) Pte.
Ltd. (DHI). The CA also noted that CEC-P relied on the EPRMP submitted
in August 2010 and not the final EPRMP Alltech submitted in December
2010, making its findings inaccurate and unreliable.
[31]
The CA also held that the precautionary principle, which shifts the
burden of proof to the project proponent to prove that the threat to the
environment does not exist, cannot be favorably applied to Villar's
cause. The CA explained that the threat was not established and that the
volumes of data generated by objective and expert analyses ruled out
the scientific uncertainty of the nature and scope of the anticipated
threat.
[32] Thus, the CA was not convinced that sufficient ground exists to grant the privilege of the writ of
kalikasan.
[33]
In a Resolution
[34] dated August 14, 2013, the CA denied the Motion for Reconsideration Villar filed.
[35]
In the present petition,
[36]
Villar argued that the issuance of an ECC for the proposed coastal bay
project is illegal and unlawful because: (1) Alltech did not prepare the
appropriate EIA study;
[37] (2) the meeting that was conducted supposedly as public consultation failed to satisfy the strict requirements of the law;
[38] (3) public hearings are mandatory for the proposed project;
[39] (4) a detailed statement of project alternative to the proposed reclamation project is a requirement under the law;
[40]
and (5) questions relating to financial and technical capabilities of a
proponent are relevant and material to the issue relating to its
ability to implement the proposed project.
[41]
Villar insists that the proposed project impinges on the viability and
sustainability of the Las Piñas-Parañaque Critical Habitat and
Ecotourism Area (LPPCHEA).
[42]
Villar also maintains that the proposed project will cause
environmental damage so as to prejudice the life, health or property of
Las Piñas and Parañaque residents because: (1) it will aggravate
flooding;
[43] (2) the
mitigation measures will impede the ecological functions of the LPPCHEA
as these will require giving up 4.35 hectares of the LPPCHEA;
[44] and (3) the claim that reclamation
per se may be pursued for its supposed positive impact and restorative qualities lacks basis.
[45]
In their Comment,
[46] Alltech
countered that the proposed project underwent the required EIA process
for environmentally critical projects and that they submitted a detailed
and exhaustive EPRMP for the Environmental Impact Statement (EIS)
study.
[47] It also maintained
that an EPRMP, and not an EIS, was the appropriate report for the
proposed project pursuant to DAO No. 2003-30. Since it is an EPRMP that
is the proper form of study for the proposed project, Alltech posited
that public hearing and project alternative are not required to secure
an ECC.
[48]
The PRA manifested that it is adopting the Comment of Alltech.
[49]
The DENR-EMB, in its Comment,
[50]
explained that the EPRMP is the proper EIA report pursuant to DAO No.
2003-30 and that the absence of a public hearing and project alternative
is of no consequence as it is not required in an EPRMP. Moreover, the
DENR-EMB emphasized that the ECC, as a planning tool, did not trigger
the actual implementation of the proposed project.
[51]
In their Comment, the cities of Las Piñas
[52] and Parañaque insisted that the subject ECC was lawfully issued in accordance with the applicable laws and rules.
[53]
In her Manifestation and Motion filed on September 7, 2020, Villar urged
the Court to take judicial notice of Republic Act No. (R.A.) 11038,
[54]
otherwise known as the "Expanded National Integrated Protected Areas
System Act of 2018" (ENIPAS). Section 4 of the ENIPAS lists among the
protected areas under its coverage the LPPCHEA.
[55]
Villar also asked the Court to take judicial notice of the Ramsar
Convention on Wetlands of International Importance Especially as
Waterfowl Habitat (Convention on Wetlands), an international treaty for
the conservation and sustainable use of wetland where the Philippines is
a signatory. On March 15, 2013, the Convention on Wetlands certified
LLPCHEA as a "Wetland of National Importance."
[56]
Thereafter, Alltech filed a Motion for Leave to File Motion to Strike
Out Petitioner's Manifestation and Motion with Counter-Manifestation
Ad Cautelam. Alltech clarified that: (1) LPPCHEA is outside the scope of the proposed project;
[57]
(2) R.A. No. 11038 and the Convention on Wetlands do not prohibit
reclamation on works in the periphery or surrounding areas of the
LPPCHEA;
[58] (3) mitigating
measures are designed to ensure that the proposed project will have no
negative impact on the LPPCHEA during the construction and operation
stages;
[59] and (4) not only can the project co-exist with the LPPCHEA, it can even assist in enhancing or improving it.
[60]
In their Motion for Leave to File Incorporated Rejoinder,
[61] Villar argued
inter alia that the ECC issued in favor of Alltech is already
functus officio
as it had already been more than five years from the date of its
issuance without the proposed project being implemented. Villar claimed
that the baseline characteristics have significantly changed to the
extent that the impact assessment is no longer appropriate.
[62]
Villar also added that the concepts of Buffer Zone and Demarcation in
the ENIPAS finds application as around 4.35 hectares of the LPPCHEA will
have to be given up if the uniform 160-meter channel width of the
Parañaque River will be built.
[63]
Issues
The issues to be resolved in this case are:
- Whether the extraordinary remedy of filing a petition for writ of kalikasan is proper to assail the issuance of ECC No. CO-1101-0001 for Alltech's proposed project;
- Whether the proposed project will cause environmental damage of
such magnitude so as to prejudice the life, health, or property of
residents of the cities of Las Piñas and Parañaque; and
- Whether the proposed project impinges on the viability and sustainability of the LPPCHEA.
Ruling of the Court
The petition is not meritorious.
Villar failed to
establish the causal link between the alleged irregularities in the
issuance of Alltech's ECC to justify resorting to the extraordinary
remedy of filing a petition for a writ of kalikasan. |
|
To promote the government's environmental protection programs, P.D. No. 1586 was enacted declaring
inter alia that:
No person, partnership or corporation shall undertake or
operate any such declared environmentally critical project or area
without first securing an Environmental Compliance Certificate issued by the President or his duly authorized representative. x x x[64] (Emphasis supplied)
In the current structure of the government, it is the DENR-EMB, under
the authority of the DENR Secretary, that is authorized to issue ECCs.
DAO No. 2003-30 delineates the rules and regulations to obtain an ECC
under the Philippine EIS System (EIS System) established in P.D. No.
1586. Through the EIS System, it is the government's objective to
achieve a rational balance between the exigencies of socio-economic
development and the requirements of environment protection for the
benefit of present and future generations.
[65]
A petition for writ of
kalikasan is an extraordinary remedy classified as a special civil action under the Rules of Procedure for Environmental Cases
[66] (RPEC). Under Section 1, Rule 7 of the RPEC:
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 essential requisites for the issuance of a writ of
kalikasan
are: (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. As a
rule, the party claiming the privilege bears the
onus of proving the requisites listed above.
[67]
In filing a petition for writ of
kalikasan, Villar argued at
length the alleged irregularities in the issuance by the EMB of the ECC
for the proposed project. However, it must be clarified that in
assailing the issuance of an ECC, the proper remedy is to file an
appeal. Section 6 of DAO No. 2003-30 provides:
Any party aggrieved by the final decision on the ECC/CNC
applications may, within 15 days from receipt of such decision, file an
appeal on the following grounds:
- Grave abuse of discretion on the part of the deciding authority, or
- Serious errors in the review findings.
The DENR may adopt alternative conflict/dispute resolution procedures as
a means to settle grievances between proponents and aggrieved parties
to avert unnecessary legal action. Frivolous appeals shall not be
countenanced.
The proponent or any stakeholder may file an appeal to the following:
Deciding Authority |
Where to file Appeal |
EMB Regional Office Director |
Office of the EMB Director |
EMB General Office Director |
Office of the DENR Secretary |
DENR Secretary |
Office of the President |
Therefore, as a rule, any of the perceived irregularities in the
issuance of the proposed project's ECC should be the subject of an
appeal to the proper reviewing authority instead of a petition for writ
of
kalikasan. Any alleged irregularity in the process undertaken
to obtain the ECC should be threshed out in the proper forum before the
appropriate reviewing authorities.
Nevertheless, in
Paje v. Casiño,
[68] the Court already recognized that the validity of an ECC may be challenged
via a writ of
kalikasan. The Court, speaking through the
ponencia of former Associate Justice Mariano C. Del Castillo, explained that:
The writ of kalikasan is principally predicated on an
actual or threatened violation of the constitutional right to a
balanced 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. 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.[69] (Emphasis and underscoring supplied; italics in the original)
Unfortunately, while petitioners raised alleged irregularities in the issuance of the ECC (
i.e.,
the use of an improper form of assessment study, lack of public hearing
and consultation, and absence of a project alternative), these are not
material and necessary due to the nature of the proposed project.
Therefore, no compelling reason was presented to warrant the
intervention of the Court.
Alltech submitted the proper form of study required for the proposed project. |
|
In securing an ECC, the proponent is required to submit a form of study
depending on the classification of the proposed project under the EIS
System. These reports include: (1) EIS; (2) Programmatic EIS; (3)
Initial Environmental Examination Report; (4) Initial Environmental
Examination Checklist; (5) Project Description Report (PDR); (6) EPRMP;
and (7) Programmatic EPRMP (PEPRMP).
In Alltech's application, the DENR-EMB required an EPRMP which refers to
a "documentation of the actual cumulative environmental impacts and
effectiveness of current measures for single projects that are already
operating but without ECCs."
[70]
On the other hand, EIS pertains to a "document, prepared and submitted
by the project proponent and/or EIA Consultant that serves as an
application for an ECC. It is a comprehensive study of the significant
impacts of a project on the environment. It includes an Environmental
Management Plan/Program that the Proponent will fund and implement to
protect the environment."
[71]
Based on this definition, an EIS is wider in scope than an EPRMP.
However, it does not automatically mean that an EIS is the appropriate
EIA report to be submitted in all projects. DAO No. 2003-30 provides for
the conditions to consider in requiring the submission of a specific
EIA report.
In paragraph (b), subsection 8, Section 1 of the Revised Procedural
Manual for DAO No. 2003-30, the project contemplated for the use of
EPRMP was explained as follows:
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[.] x x x (Emphasis supplied; italics and underscoring in the original)
Table 1-4, DAO No. 2003-30, 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 the required EIA document type for
an ECP-single project which is:
- 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);
- Operating but without ECCs;
- Operating projects with previous ECCs but planning or applying for clearance to modify/expand or re-start operations; and
- Existing projects for modification or re-start up.
In
Paje v. Casiño,
[72] the Court noted that DAO No. 2003-30 and the Revised Manual appear to use the terms "operating" and "existing" interchangeably.
In the present case, the EPRMP that Alltech submitted was the proper
form of study. As pointed out by the DENR-EMB, the proposed project is
premised on the existence of a reclamation project covered by an ECC
previously issued to the PEA, now PRA, and Amari (ECC No.
CO-9602-002-208C) issued in September 1996. In the ECC issued to Alltech
(ECC No. CO-1101-0001
[73]) on March 24, 2011, it is clearly written that:
SUBJECT to the conditions and restrictions set out herein labeled as Annex A and Annex B. This Certificate supersedes/cancels ECC CO-9602-002-208C issued on September 16, 1996 by this Office. (Emphasis supplied)
The statement accentuated above is a recognition of an existing ECC
superseded by the ECC issued in favor of Alltech. This also bolsters the
view that operations are intended to be restarted as contemplated in
paragraph (b), subsection 8, section 1 of the Revised Procedural Manual
DAO 03-30. Under the Revised Procedural Manual for DAO No. 2003-30, the
type of EIA report for a project which had previously operated or
existing with previous ECCs intended to be modified, expanded or restart
operations is not an EIS but an EPRMP or PEPRMP.
[74]
As explained by the DENR-EMB, the entire area of the proposed project
was within the area of the previous ECC issued in favor of the PEA and
Amari on September 16, 1996 covering 750 hectares.
[75]
It is worthy to add that although the ECC in the PEA-Amari project failed to be completed,
at
the time the JVA between PEA and Amari was nullified by the Court,
157.84 hectares of the 750-hectare project (which now comprises the
Freedom Islands) had already been reclaimed.
[76]
Considering that partial operations had been conducted under the
superseded ECC of the PEA-Amari project, the submission of the EPRMP by
the project proponent who took over and replaced the original project
was proper.
In
Paje v. Casiño,
[77] the Court ruled that the enumeration in DAO No. 2003-30 of what projects may be required to submit an EPRMP is
not an exclusive list. In
Paje,
the Court upheld the EPRMP despite the seeming contradiction of the
proposed coal fire plant of RP Energy to the definition of what projects
may be covered by an EPRMP. The Court explained that:
x x x The definitions in DAO 2003-30 and the Revised Manual,
stating that the EPM1P 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.
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. 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."
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.
x x x x
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" of the EPRMP and extensively discussed in Section 4 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 no infirmity.
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.[78] (Emphasis in the original; citations omitted; underscoring supplied)
In the present case, no grave abuse of discretion was proven to be
attributed to the DENR-EMB in instructing the project proponent to file
an EPRMP. Hence, it enjoys the presumption of regularity in the
performance of its official duties. Based on its technical expertise, it
found that the information provided in an EPRMP sufficiently addressed
the environmental concerns of the government.
It is within the DENR-EMB's function and expertise to determine the
category or classification of a proposed project as it is equipped with
the knowledge and competence to resolve issues involving the highly
technical field of EIS System. Alltech merely complied with the
instruction of the DENR-EMB to submit an EPRMP. The project proponent
should not be faulted for this as it is not in the position to
substitute the assessment or technical opinion of the DENR-EMB with its
own judgment. It is within the sphere of the technical knowledge and
expertise of the DENR-EMB, and not the Court nor the project proponent,
to determine the appropriate EIA report to submit for a particular
project.
Moreover, the original PEA-Amari project and the current proposed
project are similar in nature. Both projects involve reclamation and
horizontal development of the project site intended for commercial,
industrial and residential use in the future. It would have been
different if the project proponent proposed to develop reclamation works
and infrastructure intended for a totally foreign or different purpose
from the superseded of PEA-Amari project such as a nuclear power plant
or an airport. Here, the proposed project remained consistent with the
objective of the superseded PEA-Amari project.
As correctly determined by the CA, the EPRMP Alltech submitted is a
technical EIS due to its comprehensiveness. The EIARC took into
consideration important issues such as flooding, the critical habitat,
and the plight of fisherfolk who are residents within the project site
itself.
A public hearing is not mandatory for the proposed project. |
|
Section 5.3 of DAO No. 2003-30 provides:
5.3 Public Hearing / Consultation Requirements
For projects under Category A-1, the conduct of public hearing as part
of the EIS review is mandatory unless otherwise determined by EMB. For all other undertakings, a public hearing is not mandatory unless specifically required by EMB.
Proponents should initiate public consultations early in order to ensure
that environmentally relevant concerns of stakeholders are taken into
consideration in the EIA study and the formulation of the management
plan. All public consultations and public hearings conducted during the
EIA process are to be documented. The public hearing/ consultation
Process report shall be validated by the EMB/EMB RD and shall constitute
part of the records of the EIA process.[79] (Emphasis supplied)
In this case, the records disclosed that despite not being mandated to
conduct a public hearing, Alltech held a consultation on November 25,
2010 with representatives of concerned sectors such as the cities of
Parañaque and Las Piñas, PRA, the EIA consultants, the EIA case handler
and Review Committee.
[80]
Identified stakeholders in the direct and indirect impact areas of the
proposed project such as the Department of Tourism, the Partnerships for
the Environmental Management of the Sea of Asia, and the United
Cooperative Association of the Bulungan Fish Landing Site/Fisherman's
Wharf likewise participated during the public consultation.
[81]
The CA determined
that there is no actual or imminent threat that can be attributed to the
proposed project that would prejudice the life, health, or property of
residents of the cities of Las Piñas and Parañaque. |
|
It must be understood that an ECC is not a permit to implement a
project. Paragraph (d), Section 3 of the DAO No. 2003-30 defined ECC as:
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.[82]
Clearly, an ECC does not authorize the implementation of the proposed
project. It is a planning tool that imposes restrictions that the
proponent must diligently observe and duties that it must undertake to
ensure that the right to a balanced and healthful ecology is protected.
The proponent is expected to secure the pertinent permits and clearances
from all concerned government agencies, such as those listed in Annex
"B" of the ECC issued to Alltech, prior to the implementation of the
project. The proponent will have to ensure compliance with all the
conditions and requirements outlined in the ECC before it may commence
the implementation of the proposed project.
Noticeably, the conditions in the ECC issued to Alltech require securing
other permits and clearances that cannot be obtained without the
participation of other stakeholders such as the cities of Parañaque and
Las Piñas and PRA. The concurrence of the listed government agencies in
Annex "B" of the ECC such as the Department of Health, Department of
Labor and Employment, Department of Public Works and Highways,
Department of Agriculture, Bureau of Fisheries and Aquatic Resources,
and Department of Social Welfare and Development must also be obtained.
Considering that the proposed project still has to meet the conditions
listed in its ECC before commencing construction, there is no actual or
imminent threat of danger demonstrable at this stage of the proposed
project. Thus, the petition of Villar is premature.
Furthermore, the perceived dangers posed by the proposed project were
not established by Villar who bears the onus of proving her case. As
properly determined by the CA, the companies commissioned by Villar,
CEC-P and Tricore, failed to conduct a comprehensive and objective
assessment of the proposed project and lacked the expertise necessary in
the field of hydrology and hydraulics to competently conclude that the
proposed project will cause environmental damage.
[83]
In referring the petition to the CA for hearing and reception of
evidence, the CA made an exhaustive evaluation of the evidence
presented, particularly the reports submitted reflecting the studies
conducted to determine the impact of the project to the flooding
conditions in the affected areas and its effect to LPPCHEA. We accord
weight to the factual findings of the CA in identifying that no actual
or imminent threat can be attributed to the proposed project that would
prejudice the life, health, or property of residents of the cities of
Las Piñas and Parañaque.
According to the Tricore report, "the construction for the reclamation
project will change the hydrodynamic characteristics of Manila bay that
includes current wave actions, tidal fluctuations, and transport of
sediments along the coasts that would restrict circulation of coastal
water resulting to degradation of its water quality and environmental
ecosystems."
[84] However, the
Tricore report, which concluded that the proposed reclamation project
would cause an increase in flood depth and inundate two-thirds of Las
Piñas, Parañaque and Bacoor, lacked sufficient basis.
[85]
The claim that the proposed project will cause flooding in the cities of
Las Piñas and Parañaque was already addressed in Alltech's EPRMP, the
pertinent portion of which states:
As discussed during the Public Consultation, floodings are
attributable to impairment in the flow of the Parañaque and Las Piñas
rivers due to cloggings from garbage. There are no aspects of the construction and operations that would affect the rivers. Discharge channels are sufficiently provided to serve as the drainage outfalls,
as indicated in Figures 2.1 and 2.6. The ECC specifically contains the
following conditions which are being integrated in the [ongoing]
engineering works, "8. The construction of two outlet channels for
the Paranaque River Basin and Las Piñas, Zapote River basin shall be
implemented and maintained to improve drainage of the said rivers.
Inland channel separating the reclamation and the mainland shall also be
constructed and maintained to serve as reservoir and drainage of flood
waters and high/low tide from the two rivers; "[86] (Italics in the original; emphases and underscoring supplied)
Based on the Conceptual Drainage System Plan shown in Figure 3.4 of the EPRMP,
[87] no stream or river volumetric flows are affected since the outflow is Manila Bay.
[88] The drainage outfall of treated water is Manila Bay itself.
[89] Flooding will not be caused by the proposed project because:
Major impacts from reclamation activities would arise if a
river system or a drainage system would be restricted or blocked. This
is not the case with this particular project. As may be seen from
Project Development Plan Map in Figure 2.4, pages 2-10, the final
outflow Parañaque River to Manila Bay all remain unimpeded due to the
provision of a River outlet fall while that of Las Piñas River will be
unobstructed. Further the drainage outfalls of the project will be the
Manila Bay and away from these Rivers.
Also since only 635.14 hectares of the bay, portion of which had been
previously reclaimed will be reclaimed out of a total 180,000 hectares
of Manila Bay surface area (or 0.3%) the impacts are minimal. The
incremental impact arising from the reduction of the reclamation area
further reduces flooding concerns arising from the project.[90]
In addition, the findings in Tricore's report were refuted by the
measures that Alltech intends to adopt in order to avoid or reduce
potential adverse impact of the proposed project. Among the engineering
interventions proposed by Alltech are river flood control and drainage
improvement works. These measures have been designed to anticipate a
fully-urbanized Parañaque and Las Piñas in year 2020.
[91] In the Flood Studies and Design Parameters
[92] submitted by Peter Suchianco, Project Director of Alltech, the constructional tabulated
[93] as follows:
River Stretch |
Design Discharge
(c.u/sec) |
Length (Meter) |
Width (Meter) |
Cross-Section |
Proposed Structures |
Las Piñas River |
250-220 |
6.395 |
50-30 |
Single Trapezoidal |
Revertment Parapet Wall Embankment |
South Parañaque
(including Dongalo River) |
630-200 |
6,500 |
70-30 |
Single Trapezoidal |
Revertment Parapet Wall Embankment |
On the other hand, the constructional features of the proposed improvement works on drainage are as follows:
[94]
Proposed Structure |
Quantity |
Dimension |
Pump Station |
2 sites |
19.8 cm |
Control Gate |
8 sites |
195 tons |
Channel Improvement |
4,800m |
15m-8.7m widening |
Open Channel Construction |
150m |
20m in width |
Cut-off Channel |
500m |
30m in width |
Bulkhead structures will also be installed. In order to prevent
excessive underground water pressure from storm run-off, a drainage
system will be installed behind the bulkhead walls. This measure will
eliminate underground water pressure.
[95]
We agree with the observation of the CA that the study of CEC-P is
inaccurate and unreliable as it depended on the EPRMP submitted in
August 2010 and not the final EPRMP that the Alltech submitted in
December 2010.
[96] This fact
was revealed in the Judicial Affidavit of Frances Q. Quimpo, Executive
Director of CEC-P, the pertinent portion of which is reproduced below:
QUESTION#14: Of the documents you spoke of a while
ago, which of these did you use to form the basis for saying that the
project proceeds from inadequate study?
ANSWER#14: The main document scrutinized in the course of
this study is the Environmental Performance Report Management Plan
(EPRMP) submitted by Alltech to the DENR on (sic) August 2010.
QUESTION#15: Why base your study on Alltech's EPRMP?
ANSWER#15: There were other materials that we relied on as data for our study. However,
as the final report on Alltech's proposed management of the
environmental impacts before the granting of the March 2011 ECC, the
EPRMP is the source document on how the proponent expects its project to
affect the landscape and ecology of the project site and what measures
it has taken or will take to minimize the adverse effects that may be
brought by this change.[97] (Underscoring supplied; emphasis in the original)
It must be clarified that the Final EPRMP of Alltech was submitted in
December 2010, and not in August 2010. Therefore, the study of CEC-P,
that was based on wrong and inaccurate data, cannot be considered a
reliable reference in concluding that the proposed project lacked clear
scientific study on the flooding hazards of reclamation and the
appropriate mitigation measures to be adopted by the project proponent.
In the determination of potential adverse effects of the proposed
project on flooding and flushing, the CA heard and received evidence
reflecting the Flooding Impact Assessment and Flushing Impact Assessment
conducted. Various circumstances, including the potential worst-case
scenarios, were simulated and recreated by experts contracted to
identify possible flooding and flushing issues and to recommend
mitigating measures to address these. The technical findings of the CA,
which We reproduced below, explain the data-gathering method employed
and the results of the hydraulics studies the DHI conducted:
The Flooding Impact Assessment looked at how the
proposed reclamation would affect the existing flooding risks in the
Parañaque, Las Piñas and Zapote areas. In conducting the Flooding Impact
Assessment, the following main factors of flooding were used: (a)
rainfall runoff, or flooding caused by heavy rains running off into
low-lying areas and rivers; and (b) coastal flooding, or flooding caused
by storm surges. The water levels at the river mouth were compared
between the predevelopment (baseline) and postdevelopment (reclamation)
situation. The differences in water levels between the two scenarios
were considered to be the incremental impact caused by the proposed
reclan1ation. If the proposed reclamation does not cause any rise in the
downstream water level during flood compared to the existing situation,
there would not be any increased flooding further upstream. Computer
models reflecting the present condition of the entire Manila Bay,
including the site for the proposed reclamation, were set-up to
establish the baseline condition. DHI used the available data on the
frequency and maximum level of flooding in the area, as well as the data
on rainfall levels. The effects of the proposed reclamation were
evaluated using a computer model simulating the extreme rainfall runoff
and extreme storm surge scenarios. A 3-dimensional hydrodynamic model of
the entire Manila Bay was setup. Bathymetry information was taken from
the electronic navigation chart with reference to the Philippines Chart
Datum at Mean Low Low Water ("MLLW"). In order to establish the maximum
water level conditions for the baseline situation, DHI obtained
historical rainfall data for the Las Piñas-Parañaque area from the
Philippine Atmospheric, Geophysical and Astronomical Services
Administration (PAGASA). DHI also used the data obtained by DCCD from
the flood assessment survey it conducted in August 2011 regarding the
frequency and maximum flood levels within a 1-km radius from the mouths
of the Parañaque, Las Piñas, and Zapote Rivers. Secondary data from the
local governments of Parañaque and Las Piñas were also incorporated in
the DCCD data. Given that the Study was concerned with continuous
simulation of the rainfall runoff response, it was necessary to generate
rainfall time-series data. Rather than simply calculating peak
discharge values as DCCD had done, DHI used a full rainfall-runoff
time-series. The flood risk assessments were simulated using the worst case scenarios, i.e. with the highest astronomical tide coupled with an extreme storm surge or rainfall runoff event.
The results of the assessment showed that for each of the rivers, the
proposed reclamation, without any mitigating measure, would result in
increases in the maximum water levels at the river mouths, particularly
the Las Piñas-Zapote rivers, which would increase the risk of flooding
during the heavy rainfall runoff event. In terms of flood risk during a
storm surge, the proposed reclamation would act as a storm surge barrier
for the Parañaque area. However, it has a funneling effect in the Las
Piñas and Zapote areas, resulting in higher water levels in the northern
end of the southern lagoon. Based on the results of the modeling, DHI
proposed mitigation measures to avoid increasing the water levels or
backwater impact between the predevelopment and postdevelopment
conditions at the river mouths. Various combinations of the following
mitigation measures were simulated in order to test their effectiveness:
"1) Removal of the sandbar at the confluence of the Las Piñas and Zapote Rivers;
2) Dredging of the channel in front of Parañaque River to -6 meters MLLW;
3) Dredging the area between the Las Piñas and Zapote Rivers to -4 meters MLLW;
4) Building a flood or sluice gate at the Parañaque causeway joining the islands; and
5) Building a 100-meter buffer zone and lagoon infill."
Based on the results of the computer simulations of the effects of the
proposed reclamation and of the possible mitigation measures, it was
found that if the following mitigation measures were implemented, all
the negative impacts are removed:
"Maintaining a minimum width of 160 meters in the Parañaque
River extension, and dredging to deepen it by an average of 2 to 3
meters in order to improve drainage of the Parañaque River;
Dredging to deepen the entrance to the southern lagoon by an average of 1
meters, and removing the sandbar immediately offshore from the mouth of
the Las Piñas River in order to improve the drainage of the Las Piñas
and Zapote Rivers; and
Installation of a sluice gate, approximately 35 meters wide, in the
causeway separating the two lagoons, in order to allow improved drainage
and flushing of the lagoons."
According to DHI, if all the foregoing mitigation measures were
implemented, including the removal of the sandbar, deepening and
widening of the Parañaque river extension and the entrance to the
southern lagoon, the proposed reclamation would significantly improve
the drainage in the rivers, and remove all the potential negative impact
of the proposed reclamation. The modeling simulations predicted that if
all the mitigation measures were taken, there would be a positive
impact for Parañaque and Zapote and no impact at Las Piñas in case of
heavy rainfall. The positive impact indicates that the river mouth
discharge condition would be improved, potentially reducing upstream
flood risk. In the case of storm surges, the mitigating measures would
have a positive effect on the Parañaque area, with reduced surge
effects. While there would still be a small residual increase in water
level at Las Piñas and Zapote areas, this would not be measurable in the
field, resulting in zero impact, particularly since the Las
Piñas/Zapote area is protected by the elevated Manila-Cavite expressway,
which also acts as a storm surge flood barrier. The reclamation would
also have a positive impact in protecting the western side of the lagoon
which is presently eroding.
In conclusion, the flooding impact assessment indicates that the
proposed reclamation, with the recommended mitigation measures
implemented, has negligible to positive impact for the Parañaque, Las
Piñas and Zapote areas. The proposed reclamation, with the recommended
mitigation measures, can bring positive impact to the river mouth
passage conditions, and potentially reduce the risk of upstream
flooding. During storm surge, the reclamation has a positive impact at
the Parañaque area, protecting it and reducing the surge effects. At the
Las Piñas site, the model showed the storm surge to increase the water
level by 2 to 3 cm. However, this would not be detectable in the field
and has zero impact towards coastal flooding as the area is protected by
the elevated Manila-Cavite expressway. In addition, the reclamation
will have positive impact in terms of protecting the western side of the
lagoon which is presently eroding.
The DHI Flushing Impact Assessment looked into the potential
changes to the flushing of the lagoons as a result of the proposed
reclamation. Flushing time is a measure of water mass retention within
the defined boundary, and provides a description of mass balance and
transport dynamics in the lagoons. This is a good indicator of
conditions in the lagoon, especially with regard to variations to
salinity, suspended sediments, and contaminant transport. In other words
flushing can be used to evaluate changes in water quality, such as
salinity, nutrients, and even sediment exchange in the lagoons. The
Flushing Impact Assessment was conducted to determine whether the
proposed reclamation would have any negative impact on the residence or
flushing time or water exchange rate in the lagoon system which may
adversely affect the habitat, specifically the mangroves. Considering
that the flushing is very sensitive to rainfall as well as to tidal
conditions, two flushing scenarios were studied: (a) the wet season
during the monsoon, with peak river runoffs; and (b) the dry season
during the non-monsoon, with no discharges from the rivers. After the
assessment, it was found that under the present conditions, during the
dry season, both the lagoons are currently, poorly flushed due to the
relatively weak tidal regime and shallow inter-tidal area. Under the
present conditions, during the wet season, flushing is improved due to
stronger tidal forcing and additional discharge into the lagoon from the
rivers.
Based on the flushing model, the following mitigation measures were
recommended to remove the negative impacts of the proposed reclamation,
and to improve the current flushing condition in the lagoons:
a. Dredging and maintaining the extension of the Parañaque river to a depth of -6 meters;
b. Dredging and maintaining the Las Piñas/Zapote river mouths to a depth of -4meters;
c. Removal of the sand bar at the Las Piñas mouth; and
d. Provision of a 35-meter wide sluice gate and operational procedure for the causeway.
During the dry season, if the suggested mitigating measure of installing
a sluice gate is taken and it is kept open at all times, there is a
slight negative impact in the lagoon due to the generally poor flushing
during the dry season. However, if the suggested sluice gate is operated
only during flood events or during optimal tide conditions and kept
closed during the rest of the time, a positive effect could be achieved.
During the wet season, the addition of the sluice gate significantly
improves the flushing during the wet season. Provided the sluice gate
and other mitigating measures are implemented, a positive overall impact
on flushing can be expected from the proposed reclamation. The sluice
gate can be operated to improve the flushing beyond the present day
environmental condition of the lagoons.
In conclusion, DHI's hydraulic studies show that, at worst, the proposed
reclamation will have no flooding and flushing impacts provided the
recommended mitigation measures are implemented. On the other hand, the
proposed reclamation can improve the existing situation provided the
recommended mitigation measures are taken. The DHI documented their
study by preparing a Final Report on the Model Setups, Results, and
Impacts Assessment of the Flooding and Flushing Study, entitled "Manila
Bay Coastal 21 Flooding and Flushing Study Model Setups, Results and
Impacts Assessment."[98] (Emphasis supplied)
DHI presented a comprehensive analysis of the consequences of the
implementation of the proposed project. The findings of DHI is supported
by the Flooding Impact Assessment and a Flushing Impact Assessment
conducted that adds credibility and persuasive value to the proposed
project.
DCCD also presented its flood assessment survey entitled Coastal 21
Hydrologic and Flood Study, wherein it was determined that the current
flooding problems in the Las Piñas/Parañaque areas were largely due to
the fact that the existing drainage system cannot adequately drain the
low lying areas. DCCD explained that:
[I]n case of extreme events, no significant difference in
flood levels between the scenario with the reclamation and the existing
conditions is expected, if the uniform width of 160 meters up to the
existing bridge for the Parañaque channel will be implemented adjacent
to the reclamation project. The construction of the uniform 160-meter
channel, however, entails giving up around 4.35 hectares of the Critical
Habitat. The widening of the existing channel will actually prevent flooding. This is because the bird sanctuary/critical habitat constricts the channel flow from the Parañaque River. However, even
by excluding entirely the Critical Habitat from the reclamation
project, the local flooding being experienced can still be alleviated by
freeing the rivers of garbage, debris, silt, informal settlers along
the banks and other obstructions in the rivers. The street drainage
system also needs to be improved especially in the low-lying areas where
ponding occur. A major factor to the local flooding is the Manila
Coastal Road, which is a road on reclaimed land along the coast and acts
as a dike preventing the runoff from freely draining towards the bay.
The adequacy of the culverts and widths of the existing bridges to the
bay need to be evaluated as well. Forecasts on water elevations at the
outlets of the Las Piñas-Zapote rivers were generated in case of extreme
events.[99] (Emphasis and underscoring supplied)
Based on the foregoing, it is clear that the proposed project will not
aggravate flooding as DCCD had already identified the factors that cause
flooding in the areas affected. It is worthy to point out that a major
factor to the local flooding is the Manila Coastal Road, which is a road
on reclaimed land along the coast and acts as a dike preventing the
runoff from freely draining towards Manila Bay. Poor drainage system,
obstructions in rivers, and the geographical layout of the Manila
Coastal Road are the identified contributing factors in the flooding
problems in Las Piñas and Parañaque. With the implementation of the
proposed project, and adopting the mitigating measures included in the
proposed project. The communities will actually benefit as engineering
interventions will be introduced to address the flooding issues.
Between the study conducted by CEC-P and those produced by DCCD,
Surbana, and DHI, We are inclined to give more weight to the studies
commissioned by Alltech which appear to be duly supported by scientific
research. Unlike CEC-P, Surbana has amassed over 45 years of experience
in planning and managing land reclamation and coastal development.
[100]
It has undertaken various reclamation and coastal development projects
worldwide, including the Tanjong Rhu and the East Coast reclamation
projects in Singapore.
[101]
In its Closing Report,
[102]
Surbana highlighted its reclamation project next to the Kota Kinabalu
City Bird Sanctuary, the only remaining patch of mangrove forest found
in Kota Kinabalu, Malaysia. Surbana opined that the success of this
project proves that a bird sanctuary can coexist alongside a land
reclamation project.
[103]
Surbana also mentioned the Pulau Ular Reclamation Project in Singapore
which was developed approximately 200 meters from a critical habitat,
Singapore's only public access recreational dive area with good quality
coral reefs, seagrass beds, and mangrove habitats.
[104] Surbana recommended conducting a flood and flushing study
[105] and made the following conclusion:
The development of the Project, with a commitment to
minimizing negative physical, biological and social environmental
impacts at the design stage, and a wellconsidered EMMP during
construction and operation can be expected to improve the environmental
status of the LPPCHEA area when benchmarked against experience from
similar international sites.[106]
As have been already discussed, following the recommendation of Surbana,
Alltech engaged the services of DHI to carry out hydrologic and
hydrodynamic study to evaluate the potential flooding and t1ushing
impacts of the proposed project.
[107] The flood risk assessments made by DHI were simulated using projected worst-case scenarios;
i.e.,
with the highest astronomical tide coupled with an extreme storm surge
or rainfall runoff event, extreme wind conditions, and climate change.
[108]
While Villar's intention in taking a proactive role in advancing her
constituents' right to a balanced and healthful ecology is laudable, the
Court cmmot simply apply the extraordinary remedy of a Writ of
Kalikasan to all environmental issues elevated to Us. In
Paje v. Casiño,
[109] the Court clarified that:
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. After all, we cannot presume that only the Supreme Court can conscientiously fulfill the ecological duties required of the entire state.[110] (Emphases supplied)
The writ of
kalikasan is not a remedy that may be availed when
there is no actual threat or when the imminence of danger is not
apparent to justify judicial intervention. To Our mind, the writ of
kalikasan
should only be availed in extraordinary circumstances that require the
immediate attention of the Court and cannot be arbitrarily invoked when
remedies are available in administrative agencies to properly address
and resolve concerns involving protection of ecological rights.
The precautionary principle is not applicable to the present case. |
|
The precautionary principle is one of the key features introduced in the
RPEC wherein the burden of proof is shifted to the proponent of a
project to dispel concerns regarding potential harmful impacts of a
project to the environment. Section 1, Rule 20 of the RPEC states:
Section 1. Applicability. - When there is a lack of
full scientific certainty in establishing a causal link between human
activity and environmental effect, the court shall apply the
precautionary principle in resolving the case before it.
The constitutional right of the people to a balanced and healthful ecology shall be given the benefit of the doubt.[111]
It is not meant to apply to all environmental cases. Essential to the
application of the precautionary principle is the presence of scientific
uncertainty.
In the present case, We find no reason to apply the precautionary
principle to favor Villar as the proponent had sought the assistance of
experts to allay the concerns of stakeholders who will be affected by
the implementation of the proposed project. As explained by the CA, the
threat was not established and the volumes of data generated by
objective and expert analyses ruled out the scientific uncertainty of
the nature and scope of the anticipated threat.
[112]
There is no sufficient basis to hold that the proposed project will impinge on the viability and sustainability of LPPCHEA. |
|
The State's primary framework for biodiversity conservation is found in
the National Integrated Protected Areas System (NIPAS) Act of 1992.
[113] Thereafter, the Congress enacted the ENIPAS
[114]
to enlarge the scope of the original list of identified protected areas
in NIPAS and add 94 more critical habitats nationwide. Section 4 of
R.A. No. 11038 establishes LPPCHEA as a "protected area" or a portion of
land and/or water set aside by reason of its "unique physical and
biological significance, manages to enhance biological diversity and
protected against destructive human exploitation."
[115]
Nevertheless, this development does not substantially alter Our
decision to affirm the ruling of the CA denying Villar's petition for
the issuance of a writ of
kalikasan due to the reasons discussed
above. It must be clarified that the classification of LPPCHEA as a
"protected area" under the ENIPAS does not automatically result to a
prohibition of reclamation activities within the area, or alongside it.
There is nothing in the NIPAS and ENIPAS expressly declaring that
reclamation activities within or alongside a critical habitat is an
incompatible activity that is not allowed.
Moreover, the metes and bounds of the LPPCHEA remain intact. No portion
of the LPPCHEA will be utilized for the proposed project, as shown in
the geographical illustrations
[116]
submitted by Alltech and its consultants. Even the Tricore report
Villar commissioned acknowledged that LPPCHEA was located adjacent to
the project site.
[117] This
recognition is critical in validating the assertion of Alltech that no
portion of the proposed project will traverse the LPPCHEA.
Out of the 175-hectare area of LPPCHEA, the alleged 4.3 hectares of the
critical habitat mentioned by DHI that would be utilized in the event
that the Parañaque river channel with a width of 160 meters is developed
is not final and remains a proposal and will still be subject to the
approval of the government through the appropriate agencies. Even
assuming that the 4.3 hectares of the critical habitat will be utilized,
reclamation activities within or alongside a critical habitat is not
prohibited under the NIPAS and ENIPAS. Therefore, the perceived negative
impact of the proposed project to LPPCHEA's viability and
sustainability remains unsubstantiated.
ECC No. CO-1101-0001 is not rendered functus officio despite the lapse of five years from its issuance. |
|
With regard to the validity and expiry of Alltech's ECC, paragraph (d),
item no. 10, chapter 1.0 of the Revised Procedural Manual for DAO No.
2003-30 provides that:
d) ECC Validity and Expiry: Once a project is
implemented, the ECC remains valid and active for the lifetime of the
project ECC conditions and commitments are permanently relieved from
compliance by the Proponent only upon validation by the EMB of the
successful implementation of the environmental aspects/component of the
Proponent's Abandonment/ Rehabilitation/ Decommissioning Plan. This
pre-condition for ECC validity applies to all projects including those
wherein ECC expiry dates have been specified in the ECC. However, the
ECC automatically expires if a project has not been implemented within
five (5) years from ECC issuance, or if the ECC was not requested for
extension within three (3) months from the expiration of its validity. If
the baseline characteristics have significantly changed to the extent
that the impact assessment as embodied in the Environmental Management
Plan (EMP) is no longer appropriate, the EMB office concerned shall
require the Proponent to submit a new application. The EIA Report on the
new application shall focus only on the assessment of the environmental
component which significantly changed. (Emphasis in the original, underscoring supplied)
In the present case, the ECC of Alltech is not automatically rendered
functus officio
simply because the proposed project was not executed within five years
from March 24, 2011, the date the EMB issued ECC No. CO-1101-0001. It
must be highlighted that the project proponent was not the reason that
the immediate implementation of the proposed project was forestalled. It
was the filing of the petition for writ of
kalikasan that led to
the delay in carrying out the proposed project. Any revision to the ECC
because of the lapse of time is for the DENR-EMB to decide.
Participation of the country as a contracting party in the Convention on Wetlands does not proscribe the proposed project. |
|
Lastly, while the Court acknowledges the international responsibilities
of the Philippines, as a Contracting Party of the Convention on
Wetlands, for the wise use of all designated wetlands of international
importance in the country, this does not mean that a reclamation project
alongside or adjacent a designated wetland is absolutely prohibited.
Paragraph 3, Article 2 of the Convention on Wetlands of International
Importance especially Waterfowl Habitat
[118] states:
3. The inclusion of a wetland in the List does not prejudice
the exclusive sovereign rights of the Contracting Party in whose
territory the wetland is situated.[119]
It is clear that the classification of an area as a wetland of
international importance does not diminish the control the government
exercises over the wetlands and adjacent areas within its territory. The
government may continue to utilize these areas as it may deem
beneficial for all its stakeholders. Here, the government, through the
DENR, found Alltech's proposal and studies conducted sufficient to allay
the concerns of the stakeholders.
WHEREFORE, the petition is
DENIED. The Decision dated
April 26, 2013 and the Resolution dated August 14, 2013 of the Court of
Appeals in CA-G.R. SP. No. 00014, which denied the petition for writ of
kalikasan, are
AFFIRMED.
SO ORDERED.
Gesmundo, C. J., Perlas-Bernabe, Hernando, Inting, Zalameda, M. Lopez, Delos Santos, Rosario, and
J. Lopez, JJ., concur.
Leonen, J., I dissent. See separate opinion.
Caguioa, J., See Concurring Opinion.
Lazaro-Javier, J., Please see my Dissenting Opinion.
Gaerlan,
* J., no part.
* No part, in view of prior participation in the assailed Decision and Resolution of the Court of Appeals.
[1] Rollo, Vol. I, pp. 61-154.
[2] Penned by Associate
Justice Apolinario D. Bruselas, Jr., with the concurrence of Associate
Justices Rebecca De Quia-Salvador and Samuel H. Gaerlan (now a Member of
the Court); id. at 9-55.
[3] Id. at 56-59.
[4] Id. at 161-162.
[5] Rollo, Vol. II, pp. 1569-1583.
[6] Rollo, Vol. I, p. 162.
[7] Id. at 772-806, 866-881.
[8] Id. at 810.
[9] Id. at 811.
[10] Id. at 81 0-811.
[11] Id. at 977-989, 990-1003.
[12] Id. at 162-163.
[13] Id. at 163.
[14] Id. at 547-669.
[15] Id. at 163, 562.
[16] Id. at 1019-1023.
[17] Id. at 1021-1022.
[18] Id. at 159.
[19] Supra note 2.
[20] Rollo, Vol. I, p. 55.
[21] Establishing an
Environmental Impact Statement System, Including Other Environmental
Management Related Measures and for Other Purposes.
[22] Rollo, Vol. I, p. 42.
[23] Id. at 39.
[24] Id.
[25] Id. at 39-40.
[26] Id. at 40.
[27] Id.
[28] Id. at 48.
[29] Id. at 45.
[30] Id.
[31] Id. at 46-47.
[32] Id. at 53.
[33] Id. at 54.
[34] Supra note 3.
[35] Rollo, Vol. I, p. 59.
[36] Supra note 1.
[37] Rollo, Vol. I, pp. 102-114.
[38] Id. at 116-119.
[39] Id. at 119-123.
[40] Id. at 123-127.
[41] Id. at 127-129.
[42] Id. at 129-138.
[43] Id. at 138-141.
[44] Id. at 141-144.
[45] Id. at 144-147.
[46] Rollo, Vol. II, pp. 1245-1328.
[47] Id. at 1263-1273.
[48] Id. at 1273-1275.
[49] Rollo, Vol. IV, pp. 2781-2782.
[50] Id. at 2795-2833.
[51] Id. at 2814-2821.
[52] Rollo, Vol. IV, pp. 2739-2750.
[53] Id. at 2745-2746.
[54] An Act Declaring
Protected Areas and Providing for their Management, Amending for this
Purpose Republic Act No. 7586, otherwise known as the "National
Integrated Protected Areas System (NIPAS) Act of 1992," and for Other
Purposes.
[55] Temporary
rollo, pp. 1-2.
[56] Id. at 2.
[57] Id. at 3-4.
[58] Id. at 4-7.
[59] Id. at 7.
[60] Id. at 7-10.
[61] Id. at 1-7.
[62] Id. at 4.
[63] Id. at 4-5.
[64] P.D. No. 1586, Section 4.
[65] Id., Section 1.
[66] Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC.
[67] Segovia v. The Climate Change Commission, 806 Phil. 1019, 1034 (2017).
[68] 752 Phil. 498 (2015).
[69] Id. at 542.
[70] Glossary, DAO No. 2003-30.
[71] Id.
[72] Supra note 65.
[73] Rollo, Vol. I, pp. 1019-1023.
[74] Rollo, Vol. IV, p. 2804.
[75] Id. at 2804, 2861.
[76] Chavez v. Public Estates Authority, 433 Phil. 506, 560 (2002).
[77] Supra note 65.
[78] Supra note 65 at 611-616.
[79] DAO No. 2003-30, Section 5.3.
[80] Rollo, Vol. I, pp. 1016-1018.
[81] Id. at 130.
[82] DAO No. 2003-30, Section 3(d).
[83] Rollo, Vol. I, p. 48.
[84] Id. at 283.
[85] Id. at 45.
[86] Id. at 608.
[87] Id.
[88] Id.
[89] Id. at 609.
[90] Id. at 619.
[91] Id. at 843-844.
[92] Id. at 839-854.
[93] Id. at 844.
[94] Id.
[95] Id. at 856.
[96] Id. at 46-47.
[97] Id. at 228-229.
[98] Rollo, Vol. I, pp. 26-32.
[99] Id. at 22-23.
[100] Rollo, Vol. III, p. 1997.
[101] Id. at 1997-1999.
[102] Id. at 1993-2026.
[103] Id. at 2005.
[104] Id. at 2007.
[105] Id. at 2026.
[106] Id.
[107] Id. at 2241.
[108] Id. at 2245, 2258, 2263.
[109] Supra note 65.
[110] Id. at 714.
[111] Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, supra note 63.
[112] Rollo, Vol. I, p. 53.
[113] Republic Act No. 7586.
[114] Republic Act No. 11038.
[115] Id., Section 3.
[116] Rollo, Vol. I, pp. 585, 635.
[117] Id. at 266.
[118] Convention on Wetlands of International Importance Especially Waterfowl Habitat, July 13, 1994,
, visited on February 4, 2021.
[119] Id.
DISSENTING OPINION
LEONEN, J.:
Regretfully but with great respect to the majority, I dissent.
The Department of Environment and Natural Resources should have required
the proponent to submit an environmental impact statement, and not
merely the Environmental Performance Report and Management Plan, as part
of the Environmental Impact Assessment. The Court of Appeals should not
have merely relied on the Department's findings to conclude that an
environmental impact statement was not required. It should always take a
harder look at the parties' submissions.
This case involves a reclamation project near a protected bird sanctuary
and mangrove forest. Nearby residents have expressed concerns that the
reclamation project may cause flooding in their neighborhoods. This must
be weighed in a petition for the issuance of a writ of kalikasan.
In 2009, Alltech Contractors, Inc. (Alltech) submitted unsolicited
proposals to Las Piñas and Parañaque for the development, financing,
engineering, design, and reclamation of 381.26 hectares of land in Las
Piñas and 174.88 hectares of land for Parañaque, both along the coast of
the Manila Bay. Each city's Sangguniang Panlungsod later issued a
resolution authorizing its mayor to explore the proposal under a Joint
Venture Agreement. Later on, Las Piñas and Parañaque accepted the
proposal and executed their respective Joint Venture Agreements.[1]
In 2010, the Philippine Reclamation Authority approved the Las Piñas and
Parañaque Coastal Bay Project, subject to full compliance with laws,
rules, and regulations. Alltech was then directed to submit an
environmental performance report management plan, instead of an
environmental impact statement, as basis for the issuance of an
environmental compliance certificate.[2]
In December 2010, Alltech submitted its final Environmental Performance
Report Management Plan, which involved the reclamation of around 203.43
hectares along the coast of Parañaque and 431.171 hectares along the
coast of Las Piñas. This area was also within the 750-hectare site known
as the Amari Coastal Bay Development Corporation, covered by ECC No.
CO-9602-002-208C.[3]
On March 24, 2011, the Department of Environment and Natural
Resources-Environmental Management Bureau issued ECC No. CO-1101-0001
covering the Las Piñas and Parañaque Coastal Bay Project.[4]
On March 16, 2012, then Las Piñas Representative Cynthia A. Villar
(Villar), representing 315,849 residents, filed a Petition for a writ of
kalikasan before this Court. She prayed that the project be enjoined as
it will, among others, cause massive Hooding to the residents in the
area.[5]
On April 24, 2012, this Court issued the writ against Alltech,
Philippine Reclamation Authority, Environmental Management Bureau, and
the cities of Las Piñas, Parañaque, and Bacoor, Cavite. The case was
remanded to the Court of Appeals for the necessary hearings, reception
of evidence, and rendition of judgment.[6]
On April 26, 2013, the Court of Appeals rendered a Decision[7]
denying the Petition for lack of merit. It found that the Environmental
Performance Report Management Plan was also a form of environmental
impact assessment and that an environmental impact statement was
required only for new projects. Since the current reclamation project
was already within the Amari Coastal Bay Development Project, the Court
of Appeals found that the statement was unnecessary. It likewise noted
that the submission of the Environmental Performance Report Management
Plan, in lieu of an environmental impact statement, was the
Environmental Management Bureau's decision, and not Alltech's. It
pointed out that baseline data gathered in 1996 as basis for the
Environmental Performance Report Management Plan did not make the data
inaccurate or outdated, but instead required Alltech to meet a higher
standard, since the basis would be the better quality of environment in
1990.[8]
After her Motion for Reconsideration had been denied, Villar filed this
Petition. She argues, among others, that the issuance of the Environment
Compliance Certificate for Las Piñas and Parañaque Coastal Bay Project
was illegal since respondent Alltech did not submit the appropriate
Environment Impact Assessment study. She likewise contends that the
project impinges on the viability and sustainability of the Las
PiñasParañaque Critical Habitat and Ecotourism Area, which was
certified as a Wetland of National Importance in 2013.[9]
The majority, however, upheld the Court of Appeals Decision, finding:
In the present case, the EPRMP Alltech submitted was the
proper form of study. As pointed out by the DENR-EMB, the proposed
project is premised on the existence of a reclamation project covered by
an ECC previously issued to the Philippine Estates Authority (PEA), now
PRA, and Amari (ECC No. CO-9602-002-208C) issued in September 1996....
....
... Under the Revised Procedural Manual for DAO No. 2003-30, the type of
EIA report for a project which had previously operated or existing with
previous ECCs intended to be modified, expanded or re-start operations
is not an EIS but an EPRMP or PEPRMP. As explained by the DENR-EMB, the
entire area of the proposed project was within the area of the previous
ECC issued in favor of the PEA and Amari on September 16, 1996 covering
750 hectares.
....
It is within the DENR-EMB's function and expertise to determine the
category or classification of a proposed project as it is equipped with
the knowledge and competence to resolve issues involving the highly
technical field of EIS system....
....
As correctly determined by the CA, the EPRMP Alltech submitted is a
technical EIS due to its comprehensiveness. The EIARC took .into
consideration important issues such as flooding, the critical habitat,
and the plight of fisherfolk who are residents within the project site
itself.[10] (Citations omitted)
The majority likewise found that the classification of the Las
Piñas-Parañaque Critical Habitat and Ecotourism Area as a "protected
area" did not result in the prohibition of reclamation activities since
there was nothing in the law that expressly disallowed it.[11]
I disagree.
Respondent Alltech should have been ordered to submit an environmental
impact statement. This is the appropriate environmental impact
assessment study necessary to issue an environmental compliance
certificate for the Coastal Bay Project.
I
For every project or undertaking that may significantly affect the environment's quality, Presidential Decree No. 1586[12]
requires an environmental impact statement under an Environmental
Impact Statement System to be established by the Department of
Environment and Natural Resources.[13]
This 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."[14]
An environmental impact assessment, meanwhile, is a "process that
involves predicting and evaluating the likely impacts of a project
(including cumulative impacts) on the environment during construction,
commissioning, operation and abandonment. It also includes designing
appropriate preventive, mitigating and enhancement measures addressing
these consequences to protect the environment and the community's
welfare."[15]
Under the Revised Manual for Department of Environment and Natural Resources Administrative Order No. 2003-30:
There are seven (7) major EIA Report types for which
preparation and application procedures have been provided in this
Manual. Table 1-4 presents the report type per project sub-group.
a) For new projects: EIA-covered projects in Groups I, II and IV are
required either an (1) Environmental Impact Statement (EIS), (2)
Programmatic EIS (PEIS), (3) Initial Environmental Examination Report
(IEER) or (4), IEE Checklist (IEEC), depending on project type,
location, magnitude of potential impacts and project threshold. For
non-covered projects in Groups II and III, a (5) 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 prerequisite. For Group V projects, 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 for 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.[16]
Under these regulations, an environmental impact statement is required
for new projects. 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," an environmental
performance report and management plan will be submitted.
The difference is obvious: An environmental impact statement is a new
and in-depth environmental impact assessment study on a specific project
site, while an environmental performance report and management plan is a
mere update a prior environmental impact assessment study already made
on the same site. As petitioner correctly pointed out:
138. The rationale behind requiring only an EPRMP for
projects that have operated initially is to dispense with needless
submissions of new studies as there presumably exists a number of useful
data about the actual environmental impacts of a project as observed.
Of course, there is no need to duplicate the tedious processes of an
Environmental Impact Statement when the effects of a project have been
recorded upon its implementation and where historical environmental
performance and status of the project and its management plan are
already known.
139. Given a project that had operated but stopped for a period of more
than five (5) years, what is required is an environmental impact report
on how well the mitigation and enhancement measures worked, using its
environmental management plan ("EMP") as a yardstick. The convenience of
preparing an EPRMP leaves the proponent to focus on ways to enact
improvements on a project that has been implemented and has operated
with plans for modification, expansion or a restart. This shortcut
allows the proponent to suggest modifications and changes in the
original plan to augment environmental performance without the costly
distraction of undertaking a comprehensive environmental impact
statement study.[17]
The Court of Appeals found that the Environmental Performance Report and
Management Plan's submission was appropriate since a prior
Environmental Compliance Certificate had already been issued for Amari
Coastal Bay Project in 1996.
This Project, however, was never implemented.[18]
Thus, there would be no basis for any historical environmental impact
data. There would be no viable report or update on the effect of prior
mitigation measures and environmental plans already implemented. Amari
Coastal Bay Project's ECC No. CO-9602-002-208C required, among others:
8. The construction of two outlet channels for the Parañaque
River Basin and Las Piñas, Zapote River Basin shall be implemented and
maintained to improve drainage of the said rivers. Inland channel
separating the reclamation and the mainland shall also be constructed
and maintained to serve as reservoir and drainage of flood waters and
high/low tide from the two rivers.[19] (Citation omitted)
No evidence was presented showing that these two outlet channels had
already been constructed, and that these continue to improve drainage
among the identified rivers. In contrast, respondent Alltech appears to
have tacitly recognizing that such outlet channels were ever
implemented, since the outlet channels were part of their proposed
engineering works:
As discussed during the Public Consultation, floodings are
attributable to impairment in the flow of the Parañaque and Las Pi[ñ]as
rivers due to cloggings from garbage. There are no aspects of the
construction and operations that would affect the rivers. Discharge
channels are sufficiently provided to serve as the drainage outfalls, as
indicated in Figures 2.1 and 2.6. The EC specifically contains the
following conditions which are being integrated in the ongoing
engineering works, "8. The construction of two outlet channels for the
Parañaque River Basin and Las Pi[ñ]as, Zapote River basin shall be
implemented and maintained to improve drainage of the said rivers.
Inland channel separating the reclamation and the mainland shall also be
constructed and maintained to serve as reservoir and drainage of flood
waters and high/low tide from the two rivers[.]"[20]
The proposed construction, based on their Conceptual Drainage System
Plan, appears to also expand or modify the requirement of an inland
channel separating the reclamation and the mainland:
Major impact from reclamation activities would arise if a
river system or a drainage system would be restricted or block[ed]. This
is not the case with this particular project. As may be seen from
Project Development Plan Map in Figure 2.4, page 2-10, the final outflow
Paranaque River to Manila Bay all remain unimpeded due to the provision
of a River outlet fall while that of Las Pi[ñ]as River will be
unobstructed. Further the drainage outfalls of the project will be the
Manila Bay and away from these rivers.
Also since only 635.14 hectares of the bay, portion of which had been
previously reclaimed will be reclaimed out of a total 180,000 hectares
of Manila Bay surface area (or 0.3%) the impacts are minimal. The
incremental impact arising from the reduction of the reclamation area
further reduces flooding concerns arising from the project.[21]
Amari Coastal Bay Project's ECC No. CO-9602-002-208C, however, provides:
20. Any expansion or modification of the original plans not identified in the approved EIS shall undergo the EIS process.[22]
The Environmental Impact Assessment Review Committee's Comments and Chairman's Report[23]
should have also placed the Court of Appeals on guard as to the scope
of review undertaken. In particular, it states the following unresolved
issues:
Issues, Concerns, Problems |
Response or Remarks |
1. Nature of the ECC being applied for,
whether it is for expansion of coverage of the old ECC earlier issued or
application for a new one |
Has not been resolved. The committee at the
onset has been appraised both by the accounts of the EIS, the
proponents, and the case handler that the ECC being applied for is an
expansion of coverage of the earlier ECC earlier [sic] issued by the
EMB; this was during the first meeting. The new case handler who has
taken over the work of the earlier case handler, however, has said that
the ECC being
applied for is being treated as a new one. |
2. Need for new data |
Has only been resolved partly. All the
members of the committee have noted that almost all of the data included
in the draft EIS involve secondary material from the earlier EIS
submitted; there has been explicit recommendation from Mr. Ben
Francisco, member of the Rev Com and a fisheries expert, that data on
the municipal fisheries be updated to at least 5 years or later. |
3. Sea level rise due to climate change effect on the project |
Has not been resolved. It has been noted by
at least two member of the Rev Com that sea level rise due to climate
change is expected; it has been noted that it would be unfair for
project proponents not to consider this at the onset of the project and
at the same time to rely on the local government units involved to
mitigate the effects later when these are already significantly
affecting prospective locators. The proponents have been required to do a
modeling on the matter but have only responded with the assurance that
the Public Estates Authority is now preparing a master plan for all such
projects in the entire Philippines with precisely this issue in view. |
The experts tasked to assess the environmental impact of respondent
Alltech's Project noted that it was unclear whether the coverage of ECC
No. CO-9602-002-208C would be expanded. They also acknowledged that all
prior data may be outdated and would not accurately reflect the expected
environmental impact of the Project. Despite the presence of these
important, but unresolved, issues, the Environmental Management Bureau
issued the Environmental Compliance Certificate. It is baffling how the
Court of Appeals failed to address these unresolved issues.
Admittedly, environmental cases are highly technical in nature. Courts,
not having the required expertise, place great weight on the assessments
of the administrative agencies tasked to assess these issues.
The highly technical nature of the case, however, is no excuse for the Court of Appeals to be remiss in its duty to review all
the evidence presented in a case for the issuance of a writ of
kalikasan and merely rely on the Department of Environment and Natural
Resources' findings.
In Cordillera Global Network v. Paje,[24]
this Court had encountered a similar issue. There, the proponent
submitted an Environmental Performance Report and Management Plan,
claiming that its prior Environmental Impact Statement had already
contemplated its tree-cutting proposal:
Private respondents do not deny that they did not apply for a
new environmental compliance certificate prior to cutting or
earth-balling the affected trees. Nonetheless, they argue that a
separate environmental compliance certificate was not needed because
their amended Environmental Compliance Certificate already covered the
planned treecutting and earth-balling. What was required, they claim,
was a treecutting and/or earth-balling permit, which they secured prior
to the operations.
Private respondents are mistaken.
In the Environmental Impact Statement, submitted to support private
respondents' application for an environmental compliance certificate for
the SM Pines Resort Project, the project's construction phase saw the
removal "of about 112 trees or 16.54% of the total number of major
trees" from the proposed building site. Private respondents admitted
that the removal of these trees will have "[m]edium, negative[,] and
long term" impact and proposed the following mitigation measures[.]
....
On April 5, 2011, in relation to the application for an amended
environmental compliance certificate, the Environmental Management
Bureau-Cordillera Administrative Region requested additional information
on the trees that would be affected by the Expansion Project[.]
....
Private respondent SM Investments Corporation complied by submitting a
revised Environmental Performance Report and Management Plan. However,
while the document contained a detailed inventory of the trees that
would be affected by the Expansion Project, it did not provide relevant
information as to whether the trees were planted or naturally grown.
The missing information is crucial to determine if the affected trees
were part of a natural and residual forest, which means it was "composed
of indigenous trees, not planted by man[,]" putting them under the
coverage of Executive Order No. 23, series of 2011.
....
The necessity of a separate environmental compliance certificate is
evident as the original Environmental Compliance Certificate only
contemplated the removal of 112 trees for the entire SM Pines Resort
Project. Meanwhile, the amended Environmental Compliance Certificate
issued for the Expansion Project considered the environmental impact of
the "additional parking levels, retail shops[,] and restaurants; and
construction of a new 1,200 m3/day capacity Sewage Treatment Plant" but
did not account for removing an additional 182 Benguet pine and Alnus
trees.
Notably, the plan on the affected trees in the revised Environmental
Performance Report and Management Plan, in support of the application
for an amended environmental compliance certificate, seemed to be a mere
afterthought, as shown by the lack of a solid strategy in place[.][25] (Citations omitted)
Despite glaring omissions in the proponent's application, this Court in Cordillera
noted that both the trial court and the Court of Appeals had failed to
notice that a separate Environmental Compliance Certificate was
necessary, having merely relied on the technical reports submitted by
the proponent and the Department of Environment and Natural Resources'
findings on the matter:
It does not escape this Court's attention that both the
Regional Trial Court and the Court of Appeals missed private
respondents' application for the cutting of 182 trees - in addition to
112 already allowed in the earlier Environmental Compliance Certificate -
merely through an amended Environmental Compliance Certificate and
almost nine (9) years after the original had been used. This Court also
notes the lower court's nonchalant attitude when it failed to notice the
Department of Environment and Natural Resources failure to distinguish
indigenous long-standing pine trees from those recently planted when it
issued the amended Environmental Compliance Certificate despite the
existence of Executive Order No. 23.[26]
In this case, the Environmental Impact Assessment Review Committee
reported that there were unresolved issues, particularly in the data
submitted or in the data further required. These alone should have
alerted the Court of Appeals that despite the barrage of technical
reports by both parties, the matter required further thoughtful
assessment, rather than a mere reliance on the Department's
recommendation.
II
An environmental impact statement was also necessary because there were
factors that would not have been addressed in the assessment of the
Amari Coastal Bay Project. Amari Coastal Bay Project's ECC No.
CO-9602-002-208C provided:
3. The eight-hectare mangrove plantation/research project
area by the Ecosystems and Research Development Bureau (ERDB) shall be
maintained and protected as stipulated under the Memorandum of Agreement
(MOA) between the DENR and the Public Estates Authority (PEA) dated
December 19, 1991. The reclamation project shall not impede its
ecological function as breeding place for marine life including
wildlife. It shall enhance the goal of the Livelihood Plan to ensure
food security and self-sufficiency.[27]
This Environmental Compliance Certificate has already recognized parts
of what would be the Las Piñas-Parañaque Critical Habitat and Ecotourism
Area. However, certain environmental protection areas had not yet been
established in 1996, when the Certificate was issued.
The Las Piñas-Parañaque Critical Habitat and Ecotourism Area was
established on April 22, 2007 through Presidential Proclamation No.
1412,[28] which required that a
biodiversity impact assessment of such critical habitats "be integrated
into the Environmental Impact Assessment and the Environmental Risk
Assessment Processes, taking into consideration guidelines adopted under
the United Nations Convention on Biological Diversity."[29] Presidential Proclamation No. 1412-A[30]
further required that "any reclamation in the periphery of the Las
Piñas-Parañaque Critical Habitat and Ecotourism Area shall not impede
the ecological function of the lagoon and its small Islands' mangroves,
salt marshes and tidal areas as breeding, feeding and roosting place for
marine and terrestrial wildlife; [and] that "all reclamation in nearby
areas [must be undertaken] in a way that would help restore and ensure
shellfish and fish productivity[.]"[31]
Republic Act No. 11038[32] established the Las Piñas-Parañaque Critical Habitat and Ecotourism Area as a protected area,[33]
or which means "land and/or water set aside by reason of their unique
physical and biological diversity and protected against destructive
human exploitation[.]"[34]
The key phrase here is protection against "destructive human
exploitation." Thus, while the majority correctly states that nothing in
the law prohibits reclamation projects adjacent to protected areas,[35] the law explicitly protects these areas against any project that would tend to destroy or exploit them.
DCCD Engineering Corporation (DCCD), a local engineering service
consultant contracted by respondent Alltech, explicitly stated in its
report that for the reclamation project to prevent flooding, 4.35
hectares of the protected habitat be will have to be reclaimed:
If the uniform width of 160 m up to the existing bridge for
the Parañaque Channel will be implemented adjacent to the reclamation
project, no increase in flood levels from the current situation is
expected. This is consistent with the parameters discussed in Boulevard
2000. However, if the Habitat will remain thereby constricting the
channel flow from Parañaque River, the flood levels will expect to rise
from 0.23 m to 0.27 m near the river mouth. There may be corresponding
increase in the inland flooding which may be established by further
studies. Around 4.35 ha of the Habitat Area will have to be given up if
the uniform 160 m channel width will be built as planned in Boulevard
2000.[36] (Citation omitted)
DCCD did propose another alternative later on, in that if the habitat
would not be reclaimed, garbage from the Manila Coastal Road should
instead be cleared:
[I]n case of extreme events, no significant difference in
flood levels between the scenario with the reclamation and the existing
conditions is expected, if the uniform width of 160 meters up to the
existing bridge for the Parañaque channel will be implemented adjacent
to the reclamation project. The construction of the uniform 160-meter
channel, however, entails giving up around 4.35 hectares of the Critical
Habitat. The widening of the existing channel will actually prevent
flooding. This is because the bird sanctuary/critical habitat constricts
the channel flow from the Parañaque River. However, even by excluding
entirely the Critical Habitat from the reclamation project, the local
flooding being experienced can still be alleviated by freeing the rivers
of garbage, debris, silt, informal settlers along the banks and other
obstructions in the rivers. The street drainage system also needs to be
improved especially in the low-lying areas where ponding occur. A major
factor to the local flooding is the Manila Coastal Road, which is a road
on reclaimed land along the coast and acts as a dike preventing the
runoff from freely draining towards the bay. The adequacy of the
culverts and widths of the existing bridges to the bay need to be
evaluated as well. Forecasts on water elevations at the outlets of the
Las Pi[ñ]as-Zapote rivers were generated in case of extreme events.[37] (Citation omitted)
While it is admirable that an alternative was suggested, it was alarming
for respondent Alltech's own consultants to conclude that "the bird
sanctuary/critical habitat constrict[ed] the channel flow from the
Parañaque River" and would be problematic for respondent Alltech's
Project.
From these recommendations, it appears that respondent Alltech was being
given a choice: either undertake the relatively simple task of
destroying 4.35 hectares of a critical habitat, or the relatively
difficult task of permanently clearing the Manila Coastal Road of
garbage, debris, silt, and informal settlers.
The majority insists that this recommendation "is not final and remains a
proposal and will still be subject to the approval of the government
through the appropriate agencies."[38]
That the proposal was even considered should have already notified the
Court of Appeals that the Department of Environment and Natural
Resources may not have exercised the proper diligence in issuing the
Environmental Compliance Certificate.
In any case, if this proposal is not undertaken, flood levels will be
expected to rise from 0.23 meters to 0.27 meters once the reclamation
project begins, as the DCCD reported. This was precisely the situation
that petitioner contemplated. Once the Las Piñas and Parañaque Coastal
Bay Project starts; the reclamation will either destroy 4.35 hectares of
a protected bird sanctuary or cause flooding to the cities' residents,
unless respondent Alltech finds a way to permanently clean up Manila
Coastal Road before construction begins.
Thus, whether or not Republic Act No. 11038 prohibits reclamation
activities adjacent to or near protected areas, being near the protected
area should be enough reason to assess their possible effect to that
protected area.
Courts have always been in a unique position with regard to environmental protection. Our Constitution mandates:
SECTION 16. The State shall protect and advance the right of
the people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature.[39]
In line with this, this Court promulgated the Rules of Procedure for Environmental Cases,[40] which provides for the issuance of the extraordinary writ of kalikasan.[41]
However, as the majority pointed out, the Las Piñas and Parañaque
Coastal Bay Project has not yet begun construction. The Environmental
Compliance Certificate's issuance does not mean approval to begin the
reclamation project. There is, therefore, no evidence yet of imminent
environmental damage that may be the subject of a writ of kalikasan.
There are, however, features of the Project that may need further study
and approval. Thus, I recommend that this Court instead issue a
temporary environmental protection order[42]
to enjoin any act that may cause grave and irreparable injury to the
protected area and to the residents of Las Piñas and Parañaque, and to
monitor any such acts once the Project has been commenced.
ACCORDINGLY, I vote: (1) to ISSUE a Temporary
Environmental Protection Order enjoining respondents from doing any act
that may cause grave and irreparable injury to the Las Piñas-Parañaque
Critical Habitat and Ecotourism Area and to the residents of Las Piñas
and Parañaque; and (2) to REMAND this case to the Department of
Environment and Natural Resources for the proper conduct of an
environmental impact assessment to be completed within six months.
[1] Ponencia, p. 2.
[2] Id. at 2-3.
[3] Id. at 3.
[4] Id.
[5] Id. at 5.
[6] Id.
[7] Rollo, pp. 158-205.
The Decision was penned by Associate Justice Apolinario D. Bruselas,
Jr. and concurred in by Associate Justices Rebecca De Guia-Salvador and
Samuel H. Gaerlan (now an Associate Justice of this of the Third
Division, Court of Appeals, Manila.
[8] Id. at 89-190.
[9] Ponencia, pp. 7-10.
[10] Id. at 13-17.
[11] Id.
[12] "ESTABLISHING AN
ENVIRONMENTAL IMPACT STATEMENT SYSTEM, INCLUDING OTHER ENVIRONMENTAL
MANAGEMENT RELATED MEASURES AND FOR OTHER PURPOSES," June 11, 1978.
[13] Presidential Decree No. 1586 (1978), sec. 2.
[14] Revised Procedural Manual for Department Administrative Order No. 2003-30, sec. 1.0(1)(a).
[15] Revised Procedural Manual for Department Administrative Order No. 2003-30, sec. 1.0(2).
[16] Revised Procedural Manual for Department Administrative Order No. 2003-30, sec. 1.0(8).
[17] Rollo, p. 106.
[18] Chavez v. Public Estates Authority, 433 Phil. 506 (2002) [Per J. Carpio, En Banc].
[19] Rollo, p. 84.
[20] Ponencia, p. 19, Environmental Performance Report and Management Plan.
[21] Id. at 19-20 citing rollo, p. 619.
[22] Rollo, p. 84.
[23] Id. at 1004-1015.
[24] G.R. No. 215988, April 10, 2019, 901 SCRA 261 [Per J. Leonen, En Banc].
[25] Id. at 305-310.
[26] Id. at 312.
[27] Rollo, p. 84.
[28] Entitled "ESTABLISHING A CRITICAL HABITAT AND ECOTOURJSM AREA WITHIN THE COASTAL LAGOON OF LAS PIÑAS AND PARAÑAQUE."
[29] Presidential Proclamation No. 1412 (2007), Fifth Whereas Clause.
[30] Entitled "AMENDING
PROCLAMATION NO. 1412 DATED 22 APRIL 2007, ENTITLED "ESTABLISHING A
CRITICAL HABITAT AND ECOTOURISM AREA WITHIN THE COASTAL LAGOON OF LAS
PI[Ñ]AS AND PARAÑAQUE," January 31, 2008.
[31] Presidential Proclamation No. 1412-A (2008), sec. 2.
[32] Entitled "Expanded National Integrated Protected Areas System Act of 2018."
[33] Republic Act No. 11038 (2018), sec. 4.
[34] Republic Act No. 11038 (2018), sec. 3(bb).
[35] Ponencia, p. 29.
[36] Rollo, p. 96.
[37] Ponencia, pp. 25-26.
[38] Id. at 29.
[39] CONST., art. XI, sec. 16.
[40] A.M. No. 09-6-8-SC (2010).
[41] A.M. No. 09-6-8-SC (2010), Rule 7.
[42] A.M. No. 09-6-8-SC (2010), Rule 2, sec. 8 states:
SECTION 8. Issuance of Temporary Environmental Protection Order (TEPO). -
If it appears from the verified complaint with a prayer for the
issuance of an Environmental Protection Order (EPO) that the matter is
of extreme urgency and the applicant will suffer grave injustice and
irreparable injury, the executive judge of the multiple-sala court
before raffle or the presiding judge of a single-sala court as the case
may be, may issue ex parte a TEPO effective for only seventy-two (72)
hours from date of the receipt of the TEPO by the party or person
enjoined. Within said period, the court where the case is assigned,
shall conduct a summary hearing to determine whether the TEPO may be
extended until the termination of the case.
The court where the case is assigned, shall periodically monitor the
existence of acts that are the subject matter of the TEPO even if issued
by the executive judge, and may lift the same at any time as
circumstances may warrant.
The applicant shall be exempted from the posting of a bond for the issuance of a TEPO.
Section 9. Action on motion for dissolution of TEPO. - The grounds for
motion to dissolve a TEPO shall be supported by affidavits of the party
or person enjoined which the applicant may oppose, also by affidavits.
The TEPO may be dissolved if it appears after hearing that its issuance
or continuance would cause irreparable damage to the party or person
enjoined while the applicant may be fully compensated for such damages
as he may stiffer and subject to the posting of a sufficient bond by the
party or person enjoined.
CONCURRING OPINION
CAGUIOA, J.:
The ponencia dismisses the petition for review on certiorari
(the petition) filed by petitioner Cynthia Villar (petitioner) and
affirms the Decision and Resolution of the Court of Appeals (CA), which
denied the issuance of the privilege of the writ of kalikasan
against the implementation of the Las Piñas and Parañaque Coastal Bay
Project (proposed project) by respondent Alltech Contractors, Inc.
(Alltech).
I concur with the ponencia. I write this Opinion to further elucidate on certain points raised by petitioner as well as by my esteemed colleagues.
Preliminary matters on the writ of kalikasan |
|
The writ of kalikasan 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, and is
available against an unlawful act or omission of a public official or
employee, or private individual or entity.[1]
Thus, to successfully avail of this remedy, the following requisites
must be present: (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.[2] Petitioner bears the burden of substantiating these elements.
In the instant case, petitioner harps on the alleged irregularities in
the process of the issuance by the Department of Environment and Natural
Resources - Environmental Management Bureau (DENR-EMB) of the
Environmental Compliance Certificate (ECC) for the proposed project on
the basis of an Environmental Performance Report Management Plan
(EPRMP). According to petitioner, the correct mode of Environmental
Impact Assessment (EIA) for the proposed project is an Environmental
Impact Statement (EIS), not an EPRMP.
In this regard, the ponencia correctly points out that, as a
rule, any of the perceived irregularities in the issuance of the
proposed project's ECC should be the subject of an appeal to the proper
reviewing authority instead of a petition for writ of kalikasan. Indeed, a writ of kalikasan
cannot be used as a substitute for other remedies that are available to
the parties, whether legal, administrative, or political. Mere concern
for the environment is not an excuse to invoke this Court's jurisdiction
in cases where other remedies are available.[3]
Nevertheless, the Court, in Paje v. Casiño[4] (Paje),
recognized that a party who invokes the writ based on alleged defects
or irregularities in the issuance of an ECC may do so, provided that
such party not only alleges and proves such defects or irregularities,
but also provides a causal link or, at least, a reasonable connection
between the defects or irregularities in the issuance of the ECC and the
actual or threatened violation of the constitutional right to a
balanced and healthful ecology of the magnitude contemplated under the
Rules of Procedure for Environmental Cases (the Rules). Failing in this
regard, the petition should be dismissed outright so that it may be
filed before the proper forum in accord with the doctrine of exhaustion
of administrative remedies. Such course of action is necessitated by the
need to preserve the noble and laudable purposes of the writ against
those who seek to abuse it.[5]
According to Paje, 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.[6]
The Court, in Paje, also liberally applied this principle and
considered the allegation that there was no EIA conducted relative to
the amendments of the ECC therein as one that can be reasonably
connected to an environmental damage of the magnitude contemplated under
the Rules.
The circumstances in Paje are absent in the instant case.
Petitioner miserably failed to show a causal link, or at least a
reasonable connection, between the alleged defects or irregularities in
the issuance of the ECC here in question and the actual or threatened
violation of the constitutional right to a balanced and healthful
ecology of the magnitude contemplated under the Rules. For this reason
alone, the petition should have already been dismissed for failure to
exhaust administrative remedies. Nevertheless, even if the Court were to
disregard this procedural infirmity, the petition should still be
denied.
On the proper form of Environmental Impact Assessment for the proposed project |
|
The ponencia comprehensively discusses how Alltech submitted the
proper form of EIA required for the proposed project. In sum, when the
DENR-EMB required an EPRMP for the proposed project, it took into
consideration the fact that the application was premised on the 1996 ECC
of the discontinued Philippine Estates Authority (PEA) - Amari Coastal
Bay Development Corporation (Amari) project. This is in full accord with
DENR Administrative Order No. 30, Series of 2003 (DAO 03-30) and its
Revised Procedural Manual, which provides that an EPRMP is the required
EIA document type "for operating projects with previous ECCs but
planning or applying for clearance to modify/expand or re-start operations x x x."
Associate Justices Marvic M.V.F. Leonen (Justice Leonen) and Amy C.
Lazaro-Javier (Justice Javier) echo the argument of petitioner that the
EPRMP is not the proper fonn of EIA for the proposed project considering
that the PEA-Amari project covered by the 1996 ECC was never
implemented. They opine that Alltech should have submitted an EIS, which
is the applicable EIA form for new environmentally critical projects.
This has already been sufficiently rebutted by the ponencia. Specifically, the ponencia
notes that the PEA-Amari project was partially implemented, with 157.84
hectares of the 750-hectare project already reclaimed. As explained by
the DENR:
The subject coastal bay project cannot be simply considered
as an entirely new project since the latter logically presuppose[s] the
absence of any kind of existing environn1ental data at all. In other
words, the above engineering and associated works already undertaken in
the area generate cumulative environmental data which can serve as basis
for the submission of an EPRMP. x x x
The PEA-Amari project had already been implemented and began operations
as shown by the earth moving activities undertaken thereon. The
activities conducted under the old ECC have actual cumulative
environmental impact and data which can be used as basis in determining
the effectiveness of the applicable measures implemented under the old
ECC, in relation to the current coastal bay project.[7] (Emphasis supplied)
Thus, considering that the PEA-Amari project which was covered by the
1996 ECC had already been implemented and the entire area of the
proposed project of Alltech falls within the area of the previous ECC
issued in favor of Amari, then the EPRMP was the correct form of EIA
report applied in acquiring the ECC.
Justice Leonen underscores that the ECC was issued despite the fact that
certain issues, concerns, and problems raised in the Comments and
Chairman's Report (Report) of the EIA Review Committee (EIARC) were
allegedly unresolved. Said Report noted that it was unclear whether the
coverage of the ECC issued in favor of Amari would be expanded, and it
also acknowledged that prior data may be outdated and would not
accurately reflect the expected environmental impact of the proposed
project. According to Justice Leonen, these unresolved issues should
have placed the CA on guard as to the scope of review undertaken.[8]
With due respect, I disagree. A careful examination of the records would
show that these issues were all already resolved. As explained by the
DENR:
x x x The statement in the Chairman's Report that there is
an "issue as to whether the application [is] for an expansion coverage
of the earlier ECC or for a new ECC" was only made to point out that
this matter was among those considered by the EIARC and the EMB during
the initial stages of the EIA process, and which were eventually resolved upon the issuance by the EMB of the EPRMP checklist.
Thus, in the same paragraph, [the EIARC Chair] stated that all the
shortcomings and issues are capable of being resolved and that the EIARC recommends the issuance of the ECC with conditions to be specified.[9] (Emphasis and underscoring supplied)
On the propriety of an EPRMP, petitioner claims that an EPRMP is
stripped of the critical and essential features of a full-fledged EIS
such as: the scoping of the technical, environmental, and social issues
that must be addressed; gathering of baseline environmental conditions;
impact assessment focused on significant environmental impacts taking
into account cumulative impacts; proof of consultation with
stakeholders; and mandatory public hearings.[10]
According to petitioner, the EPRMP looks backward and is heavily
reliant on secondary sets of data which are more than a decade old and
thus irrelevant and unresponsive to present realities. Petitioner claims
that "[i]nstead of scoping forward for possible important issues based
on present and projected realities through an EIS, a diluted and
conservative version of the EIA study via an EPRMP was submitted and used as basis for the issuance of a new ECC."[11]
Petitioner's attempt to downplay the effectiveness and comprehensiveness
of an EPRMP - as compared to an EIS - is erroneous and inaccurate. In Paje,
the Court explained that the EIA process is a system, not a set of
rigid rules and definitions - there is much room for flexibility in the
determination and use of the appropriate EIA document type.[12]
Hence, the Court ruled that what should be controlling is the guiding
principle set in DAO 03-30 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."[13]
Consequently, as applied herein, the next logical question is: Did the
EPRMP provide the necessary information in order for the DENR-EMB to
assess the environmental impact of the proposed project of Alltech? The
answer is in the affirmative.
The EIA process conducted by the EMB should not be characterized as an
incomplete or limited study by the mere reasoning that an EPRMP was
used. Professor Agerico M. De Villa (Prof. De Villa), Chairman of the
EIARC, explained that by the submission of an EPRMP, it does not
necessarily follow that the EIARC may no longer impose additional
requirements for the ECC application. Thus, the EIARC may deem it
necessary to add more parameters on top of the old, technical EIS to be
incorporated to the EPRMP. Here, according to Prof. De Villa, the EIARC
actually imposed a more thorough and in-depth environmental analysis
which yielded an even more comprehensive study compared to the previous
PEA-Amari EIS, as evidenced by the volume of data incorporated in the
final EPRMP, while focusing on the more important issues such as
flooding, the critical habitat, and the fisherfolk. In fact, Prof. De
Villa testified that the EIARC actually treated the subject ECC
application as if it were a technical EIS:
Q |
My question: since it was an
EPRMP checklist and you just explained to us that it is more simplified
as to focus, my question is x x x: how can you say that any review that
you would conduct based on this is sufficient in support [of] the
issuance of an ECC by the review committee? |
A |
One, if you are using an EPRMP, it does not necessarily follow that you cannot add requirements to it, except for the requirement of social impact assessment. In other words, if
the review committee deems it necessary to add more parameters coming
from the old, technical EIS to be added to the EPRMP, we can do that,
which we have done. In fact, in this case[,] because we
have done that, if you will notice the EPRMP is much more thicker than
the original EIS and there is no limit as to what we will require so long as we do not require public consultation or public hearing, so in our case so far as we are concerned, being the chair, I actually treated it as if it were a technical EIS. |
|
|
Q |
Why do you say so? |
A |
(1) because we were able to add
considerations that would have been part only of the technical EIS but
now we required them of the EPRMP; (2) I have been able to convince the
proponent x x x to have at least public consultation x x x. |
|
|
Q |
You mentioned you took into consideration
[matters that are] appropriate only for a technical EIS. What are those
matters that you took into consideration? |
A |
Well, for example, when you have
EPRMP, that means you have to focus more on what you think are the most
important issues of the project; and given our assessment, we focused
on, for example: flooding, for example: the critical habitat, for
example: the plight of the fisherfolk who were the residents within the
site itself x x x and focusing on these for example in the case
of flooding we required more data, but they furnished data from
[PAGASA], which did not satisfy us, because you cannot make predictions
on micro term even the data they have submitted to us. So we
require[d from] them additional information rather than waiting for all
the statistics involved, we simply presumed that flooding would be [very
important and vital for the project and therefore,] focusing on it[,]
we required [that the] management plan must be compatible with Manila
Bay guidelines [on] critical habitat management plan [and] with
Boulevard 2000 plan - all of which also have to be compatible with the
R.A.s [involved,] for example [C]lean [A]ir [Act, [C]lean [W]ater [A]ct,
and the [B]uilding [C]ode. And so on and so forth.[14] (Emphasis supplied) |
Additionally, as pointed out by the CA, Alltech was even required to
meet a higher standard through the EPRMP, which is to preserve the
environmental condition in the vicinity of the proposed project using as
basis the higher quality of environment in 1990.[15] In explaining his preference for the EPRMP over the EIS, Prof. De Villa testified that:
[i]n 1990 compared to fairly recently, the environmental
quality of the cited vicinity was better, and therefore if that would be
the basis for the management of the environment, then, that means you
have a higher quality of environment that the proponent have (sic) to
keep. In other words, through time, whether we like it or not, our
environment degrades, so what I am saying precisely because EPRMP is
used, therefore the proponents have to keep their promise to keep the
quality of environment x x x as of 1990 x x x.[16] (Emphasis supplied)
Thus, contrary to the claim of petitioner that the EPRMP "looks backward"[17] and is "not responsive to present realities,"[18]
the EPRMP actually ensures that the proponent will protect the
environment according to the optimum standard. As assured by the DENR,
the proponents are not only required to maintain the contemporary
environmental conditions during the implementation of the project, they
are likewise bound to improve the same consistent with the standards in
1996.[19]
Evidently, the foregoing considerations show that not only was the EPRMP
the correct form of EIA study required based on the nature of the
proposed project, it was also sufficient in assessing the environmental
impact of the proposed project.
On the DENR's determination of the proper EIA form for the proposed project |
|
It should be emphasized that it was the DENR-EMB that instructed Alltech to submit an EPRMP.[20] In this regard, the ponencia states:
In the present case, no grave abuse of discretion was proven
to be attributed to the DENR-EMB in instructing the project proponent
to file an EPRMP. Hence, it enjoys the presumption of regularity in the
performance of its official duties. Based on its technical expertise, it
found that the information provided in an EPRMP sufficiently addressed
the environmental concerns of the government.
It is within the DENR-EMB's function and expertise to determine the
category or classification of a proposed project as it is equipped with
the knowledge and competence to resolve issues involving the highly
technical field of EIS system. Alltech merely complied with the
instruction of the DENR-EMB to submit an EPRMP. The project proponent
should not be faulted for this as it is not in the position to
substitute the assessment or technical opinion of the DENR-EMB with its
own judgment. It is within the sphere of technical knowledge and
expertise of the DENR-EMB, and not the Court nor the project proponent,
to determine the appropriate EIA report to submit for a particular
project.[21]
I agree with the foregoing pronouncements. The adamant insistence on the
"correct" type of EIA study, in the absence of any allegation of grave
abuse of discretion on the part of the DENR-EMB, and without any
technical and scientific expertise to support such claim, simply cannot
be countenanced. As the administrative agency entrusted with the
determination as to which EIA document type applies to a particular
application for ECC, falling as it does within its particular technical
expertise, it is the DENR's determination, especially in the absence of a
showing of grave abuse of discretion or patent irregularity, that
should be accorded great respect by the Court. Indeed, this is the
demand of the doctrine of separation of powers, which behooves the Court
from interfering in matters addressed to the sound discretion of
executive agencies with special competence unless there is a showing of
grave abuse of discretion in the performance of their duties.
On the recommendation for the issuance of a Temporary Environmental Protection Order |
|
For his part, Justice Leonen votes to issue a Temporary Environmental
Protection Order (TEPO) to enjoin respondents from doing any act that
may cause grave and irreparable injury to the Las PiñasParañaque
Critical Habitat and Ecotourism Area (LPPCHEA). He explains:
[T]his Court promulgated the Rules of Procedure for
Environmental Cases, which provides for the issuance of the
extraordinary writ of kalikasan. However, as the majority pointed out,
the Las Piñas and Parañaque Coastal Bay Project has not yet begun
construction. The Environmental Compliance Certificate's issuance does
not mean approval to begin the reclamation project. There is, therefore,
no evidence yet of imminent environmental damage that may be the
subject of a writ of kalikasan.
There are, however, features of the Project which may need further study
and approval. Thus, I recommend that this Court instead issue a
[T]emporary [E]nvironmental [P]rotection [O]rder to enjoin any act that
may cause grave and irreparable injury to the protected area and to the
residents of Las Piñas and Parañaque, and to monitor any such acts once
the Project has been commenced.[22]
With due respect to my colleague, I believe that a TEPO may be unnecessary or superfluous.
Lest it be forgotten, the ECC is a planning tool - its mere issuance
does not automatically signal the actual implementation of the proposed
project. It is still necessary that the requirements and conditions
imposed therein are complied with. The following averments from the DENR
are thus compelling:
x x x [T]he release of the ECC only allows the project to
proceed to the next stage of project planning, which is the acquisition
of approvals from other government agencies and LGUs. Aside from the acquisition of these approvals, the proponents must also comply with the conditions and undertakings in the ECC and EPRMP.
To name a few, these include the implementation of a Coastal Ecosystem
Management Plan/Program, Information, Education and Communication
Program, Flood Monitoring Plan, and alignment of the Environmental
Management Plan with the Manila Bay Coastal Strategy. x x x
x x x x
Moreover, the ECC demands compliance with the Toxic Substances
and Hazardous and Nuclear Wastes Control Act of 1990, Ecological Solid
Waste Management Program Act of 2000, the Philippine Clear Water Act of
2004, and the Philippine Clean Air Act of 1999, among other environmental laws and regulations.
Further, the ECC requires proper storm drainage system, concrete
culverts, and other t1ood and erosion control [measures], noise and air
pollution control measures to prevent environmental degradation.
Without any doubt, the absence of compliance with the above
conditions and undertakings, aside from those contained in the EPRMP,
prevent the actual implementation of the coastal bay project. Also, the
absence of the above plans and programs which are intended to direct the
course of the project implementation renders the contention of
petitioner as absurd. As a planning tool, the ECC cmmot embody the
"specific details" for the implementation of the project, inasmuch as
the post-conditions thereto, that will form part of the specific
commitments of the proponents, are yet to be formulated by the concerned
government agencies and institutions.
x x x x
For the critical habitat alone [or the LPPCHEA], the proponents are
mandated to coordinate with the Manila Bay Critical Habitat Management
Council and the Protected Areas and Wildlife Bureau (PAWB) to tackle
impacts of the project on the critical habitat, and implement the
recommendations of the said council. Thus, the project implementation cannot proceed without said recommendations.
Parenthetically, the recommendation of both the Manila Bay Critical
Habitat Management Council and the PAWB must be implemented before any
work or construction activities may be made, especially those affecting
the critical habitat. Again, this condition seems to have been
ignored by petitioner in claiming that the adoption of the Boulevard
2000 Framework Plan would destroy the ecosystems found in the critical
habitat. Considering the ECC-required recommendations from the Manila
Bay Critical Habitat Management Council and the PAWB, observance of the
Boulevard 2000 Framework Plan cannot be made in its totality without
endangering the critical habitat.[23] (Emphasis supplied)
It is evident therefore that before the proposed project can be
implemented, Alltech must show compliance not only with the conditions
in the EPRMP and ECC, but also with a plethora of environmental laws and
regulations, and obtain the necessary permits from various government
agencies tasked with protecting the environment. Thus, the prevention of
grave and irreparable injury to the LPPCHEA and the residents of Las
Piñas and Parañaque may already be covered by these requirements prior
to implementation. This therefore negates any need to issue a TEPO.
At this juncture, I wish to emphasize that respondents have shown that
mitigating measures will be undertaken in particular regard to the
LPPCHEA. Notably, unlike in the PEA-Amari project which included the
LPPCHEA itself, Alltech's proposed project actually excludes the LPPCHEA
from its coverage to ensure that it is not adversely impacted.[24]
Despite the fact that the LPPCHEA area is already outside of the
proposed project, the respondents have nonetheless recognized the
vulnerability of the LPPCHEA and have vowed to undertake mitigating
measures to ensure that the proposed project will not have any negative
impact on the LPPCHEA. Indeed, respondents have considered measures that
not only preserve the LPPCHEA, but improve its condition:
78. To recall, the DENR Vulnerability Report, which
Petitioner cites in her Petition, states that an estimated 572.76 kilos
of garbage are being thrown in the LPPCHEA everyday.
79. The LPPCHEA is expected to deteriorate further if no active intervention is put in place to improve the current situation. As
adequately shown by ALLTECH during trial, the mitigation measures
adopted by the Project proponents, not to mention the onerous conditions
stated in the ECC, ensure that the Project will move towards the
direction of environmental protection. Given all these, Petitioner's
insistence to leave LPPCHEA as it is and let it further degrade is
certainly absurd and irrational.
80. All told, the project masterplan has been formulated to allow the
development works to co-exist with the LPPCHEA, with the latter serving
as an eco-park/eco-tourism area. A vibrant and well-preserved LPPCHEA
is, therefore, integral to the success of the Project.[25] (Emphasis supplied)
On the nature of a reclamation project and its effects on the environment |
|
As regards the effects of the proposed project on the environment, Justice Javier opines:
Verily, the question is not "whether actual environmental
damage will occur" anymore, but how much more damage will it cause, for
it has consistently been found and proven that reclamation had actually
and already caused environmental damage. In fact, it is not only the
aforementioned areas that will be exposed to flooding and inundation,
but also the very reclaimed lands themselves.
For another, the reclamation projects x x x and the eventual
construction of road networks and bridges will more likely than not
cause direct negative impacts upon the [LPPCHEA]. x x x
x x x x
Hence, even respondents' evidence confirmed the conclusion of the Court
of Appeals that "the threat of flooding as a consequence of land
reclamation is conceded and thus the causal link between the human
activity of reclamation and environmental threat of flooding is
established."
Worse, respondents' position rests on the premise that the recommended
mitigating measures being in place would purportedly prevent or "would
not aggravate" the flooding situations and "even reduce the level of
flooding." [Geological expert Kelvin S. Rodolfo], however, remains
unconvinced and unimpressed by such measures for being historically
ineffective and even aggravating x x x.
x x x x
Clearly, respondents' confidence is misplaced. Short of any certainty,
the promise of safety is but ideal and theoretical. In effect,
respondents, again, have clearly acknowledged, nay, admitted that the
proposed reclamation would cause environmental impacts.[26] (Emphasis omitted)
I disagree. With due respect, these statements do not paint the entire picture.
The need for extreme caution in examining the possible negative effects
of reclamation projects on the environment is understandable and
laudable. Nonetheless, the Court should not operate on the premise that
reclamation in itself is harmful to the environment. Notably,
reclamation is not prohibited by our environmental laws. Rather, what
the laws provide are ways to regulate reclamation projects in such a way
as to mitigate or prevent altogether any negative impact these may have
on the environment.
Thus, while reclamation activities may have negative impacts on the
environment, the same will only arise if mitigating measures are not put
in place to address these possible effects. On this note, the Court
cannot simply brush aside the proposed mitigating measures of the
experts and prematurely claim that these would not be met. The Court
does not rule on surmises, speculations, and generalizations. Otherwise,
to base our ruling on mere suppositions would stymie any reclamation
project that would be proposed, regardless of its compliance with the
requirements of law. This would be tantamount to saying, in simple
terms, that all reclamation projects are bad for the environment. As for
the credence of such belief, it is not for the Court to determine. What
the Court is called to do is to ensure compliance with the laws. On
this note, the following averments of the DENR are enlightening:
The process of reclamation per se does not result to flooding or significant environmental damage contrary to petitioner's baseless conclusions.
Petitioner's assertion that "aggravated flooding as a direct result of a
reclamation project is conceded fact, rendering any discussion thereon
unnecessary" is literally taken out of context. To be clear, the Court of Appeals' declaration that "the threat of flooding as a consequence of land reclamation is conceded" has been qualified
by the conclusion that "the extent and magnitude of this threat have
been scientifically determined and quantified and they do not amount at
all to any such massive flooding nor to any such destruction of the
critical habitat LPPCHEA asserted by the petitioner." x x x
x x x x
Indeed, the mere introduction of works upon the environment, by
themselves, cannot cause significant threat, damage or destruction
thereon. Activities which may affect the environment such as mining,
cutting of trees, land development and urban expansion (which may
aggravate global warming) are not proscribed provided that scientific
studies or environmental assessments have been made to identify the
potential risks and measures which may be taken to address the same.
These include reclamation activities which do not necessarily result
to massive flooding or significant environmental damage as long as
scientific studies have been conducted and the needed measures to
address the potential risks are observed during the implementation of
the project. The recurring floods in Metro Manila are not caused by reclamation activities; instead, these are caused by the proliferation of garbage, human recklessness and poor engineering, among others.
On the other hand, the vast portions of the Coastal Bay Area, along the
stretch of Roxas Boulevard, are reclaimed lands which, by themselves, do
not bring about flooding to the nearby areas. Well[-]designed and
properly executed reclamation projects will not cause flooding. In
fact, these projects can prevent flooding by providing added protection
such as sea barriers to mitigate the effects of accelerated rising sea
levels caused by global warming.[27] (Emphasis and underscoring supplied)
The Court, which clearly has no expertise in these matters, should give
credence and defer to these findings by the DENR. While the Court has
jurisdiction and power to decide cases, it clearly oversteps its
boundaries by not giving proper respect to the findings and
recommendations of the administrative agency on questions that demand
the exercise of sound administrative discretion requiring the special
knowledge, experience, and services of the administrative tribunal to
deten11ine technical and intricate matters of fact.[28]
In sum, considering that the laws do not categorically prohibit
reclamation activities, it becomes a matter of evidence whether such
activities would cause damage to the environment of such magnitude as to
prejudice the life, health, or property of inhabitants in two or more
cities or provinces so as to enable the issuance of the privilege of the
writ of kalikasan. However, as found by the CA after an exhaustive study of the evidence presented before it, which is affirmed by the ponencia,
petitioner simply failed to present credible, competent, and reliable
evidence to support her allegations. Moreover, petitioner's
apprehensions on the negative impacts of the proposed project on the
environment have been disproved by objective, expert, and scientific
studies of reputable entities with vast international experience.
Final Note
The DAO 03-30 lays down the basic policy and operating principles of the
government in evaluating the impacts of proposed projects on the
environment. It provides that consistent with the principles of
sustainable development, the policy of the State in environmental impact
assessments is to "ensure a rational balance between socio-economic
development and environmental protection for the benefit of present and
future generations"[29] and to
"[assess] the direct and indirect impacts of a project on the
biophysical and human environment and [ensure] that these impacts are
addressed by appropriate environmental protection and enhancement."[30]
Thus, it is important to strike a delicate balance between protecting
the environment and promoting socio-economic development, both of which
are for the benefit of present and future generations. This balancing
act is reflected in the following statement of the City of Las Piñas as
contained in its Comment, which was adopted by the City of Parañaque:
27. Essentially, local revenue multipliers will arise from
tourism that would be expected with the improvement of conditions in the
LPPCHEA and expansion of residential and commercial establishments
after completion. These sprang from the common knowledge that Las
[Piñas] City is the fourth most populated but has the fifth lowest
income in the National Capital Region. The City should not be restrained from pursuing a legitimate project that aims to spur its socio-economic development.
28. But more importantly, on top of it all, Respondent City of Las
[Piñas] will certainly not allow to be the cause of environmental damage
and dangerous flooding. In pursuing the project, it has directed
the adoption of concrete measures to protect the LPPCHEA and improve
Hooding conditions. The City of Las [Piñas] has insisted on thorough
research and studies to avoid any tragedy that may befall its
environment and citizenry. Given the foregoing, it would be a dangerous
precedent to allow the instant Petition supported merely by bare
allegation and suspicion. To do so would be the real tragedy in that
sense.[31] (Emphasis supplied)
The writ of kalikasan is among the mechanisms by which the Court
takes a proactive role in ensuring that the constitutional right of the
people to a balanced and healthful ecology may be advanced and
protected.[32] However, being
proactive does not mean that the Court may arrogate unto itself the
determination of intricacies that are far beyond its capacity by
insisting on generalized and incomplete assumptions and specious
speculations when there is strong scientific evidence to the contrary.
In the absence of grave abuse of discretion on the part of the DENR, the
Court must avoid the urge to supplant its own perceived superiority
over administrative agencies which are not only given the specific task
and competence by the law, but are also far more knowledgeable on the
technicalities involving environmental matters.
Parties who seek the issuance of the writ of kalikasan, whether on their own or on others' behalf, carry the burden of substantiating the writ's elements.[33]
In this case, petitioner failed to satisfy the burden to prove her
claims. Based on a careful and meticulous weighing of the evidence
presented by the parties, the CA gave more weight to respondent's
evidence:
Petitioner Villar may have been motivated by good faith x x x. Unfortunately,
the ones that she commissioned failed to conduct a thorough, rigorous
and objective study on the possible impacts of the proposed reclamation
project. The studies made by Tricore and CEC-P were not comprehensive and the methodologies applied were inappropriate. There was also lack of expertise
on the part of Tricore and CEC-P in the areas of hydrology and
hydraulics, which areas are pertinent in the conduct of their respective
studies. Thus, petitioner Villar failed to support her claim by any
competent, credible and reliable evidence that the proposed reclamation
project will expose her and the Las Piñas and Parañaque residents and
their properties to catastrophic environmental damage.
On the other hand, Alltech and the other respondents were able to
establish the scientific and expert studies [that] assessed the
potential flooding and flushing impact that may arise from the coastal
bay project. The expert, objective studies conducted by DCCD, Surbana and DHI, revealed that if all the recommended mitigating measures were to be implemented, the [c]oastal bay project would not aggravate the flooding situation in the river mouths of Parañaque, Las Piñas-Zapote Rivers, and it may even reduce the level of flooding.[34] (Emphasis supplied)
To reiterate, petitioner failed to present credible, competent, and
reliable evidence to support her allegations. Moreover, petitioner's
apprehensions on the negative impacts of the proposed project on the
environment have been disproved by objective, expert, and scientific
studies of reputable entities with vast international experience.
Consequently, petitioner failed to prove her entitlement to the
privilege of the writ of kalikasan.
ACCORDINGLY, I vote to DENY the petition.
[1] LNL Archipelago Minerals, Inc. v. Agham Party List, 784 Phil. 456, 470 (2016).
[2] Id.
[3] Abogado v. Department of Environment and Natural Resources, G.R. No. 246209, September 3, 2019, accessed at .
[4] 752 Phil. 498 (2015).
[5] Id. at 542.
[6] Id.
[7] Rollo, pp. 2807-2808.
[8] Dissenting Opinion of Justice Leonen, pp. 7-8.
[9] Rollo, p. 2812.
[10] Id. at 90-91.
[11] Id. at 91.
[12] Paje v. Casiño, supra note 4, at 611-612.
[13] Id. at 612. Emphasis supplied.
[14] Rollo, pp. 2809-2810.
[15] Ponencia, p. 6.
[16] Rollo, pp. 1270-1271.
[17] Id. at 91.
[18] Id.
[19] Id. at 2814.
[20] Ponencia, p. 6.
[21] Id. at 16.
[22] Dissenting Opinion of Justice Leonen, pp. 13-14.
[23] Rollo, pp. 2819-2821.
[24] Id. at 1276.
[25] Id. at 1284.
[26] Dissenting Opinion of Justice Javier, pp. 5-9.
[27] Rollo, pp. 2822-2823.
[28] Osmeña v. Garganera, 828 Phil. 560, 573 (2018).
[29] DAO 03-30, Art. 1, Sec. 1; DAO 03-30 Revised Procedural Manual 1.0(1).
[30] DAO 03-30, Art. 1, Sec. 1(a); DAO 03-30 Revised Procedural Manual 1.0(1)(a).
[31] Rollo, pp. 2748-2749.
[32] See RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, A.M. 09-6-8-SC (2010), Rule 1, Sec. 3 and Rule 7, Sec. 1.
[33] Abogado v. Department of Environment and Natural Resources, supra note 3.
[34] Rollo, pp. 48-49.
DISSENTING OPINION
LAZARO-JAVIER, J.:
I respectfully dissent and vote to partially grant the petition.
Paje v. Casiño[1]
has held that a petition for the privilege of the writ of kalikasan
addresses (i) whether the alleged defects or irregularities in the
issuance of an environmental compliance certificate have a causal link
or at least a reasonable connection to the actual or threatened grave violation
of the constitutional right to a balanced and healthful ecology in
terms of the territorial scope of such damage; and (ii) whether actual environmental damage will occur if the project is implemented.
Whether the defects or
irregularities in the issuance of an environmental compliance
certificate have a causal link or at least a reasonable connection to
the actual or threatened grave violation of the constitutional right to a
balanced and healthful ecology in terms of the territorial scope of
such damage |
|
Paje has recognized that the use of a wrong environmental impact assessment document type is a defect or irregularity in the issuance of an environmental compliance certificate that has a causal link or at least a reasonable connection to the environmental damage of a magnitude that transcends political and territorial boundaries. This is because a wrong document type results in an erroneous environmental impact assessment and flawed environmental compliance certificate,
which government agencies and local governments, with final authority
to implement the project, in turn, incorrectly rely upon in approving
the implementation of the project.
Here, respondents used the wrong environmental impact assessment document type. According to Paje, an Environmental Performance Report and Management Plan (EPRMP) is used in the following instances:
- Expansion of existing projects (including undertakings that have
stopped operations for more than 5 years and plan to re-start with or
without expansion);
- Operating projects without ECCs;
- Operating projects with previous ECCs but planning or applying for clearance to modify/expand or re-start operations;
- Existing projects for modification or re-start up; and,
- Single, non-implemented project applying for a major amendment of its ECC.
The Las Piñas Coastal Bay Project and the Parañaque Coastal Bay Project are new projects. Hence, as held in Paje, each of these projects requires an environmental impact statement. These projects cannot use an EPRMP because neither of them is an operating or existing project.
They cannot be tacked with the PEA-Amari Coastal Bay project because
this project never took off as its ECC expired five (5) years from the
date of its issuance. This was because the governing legal structure for the projects, the
Amended Joint Venture Agreement between the Public Estates Authority
(PEA) and the Amari Coastal Bay Development Corporation, was nullified
by the Court in 2002.
The Las Piñas Coastal Bay Project and the Parañaque Coastal Bay Project are not non-implemented projects applying for major amendments of their ECCs.
Indeed, it is counterintuitive to insist upon an EPRMP as the
environmental impact assessment document type for the Las Piñas Coastal
Bay Project and the Parañaque Coastal Bay Project when there is no
ongoing or existing project, and the PEA-Amari Coastal Bay project they seek to ride on was based on environmental assessment and data dating back to 1996.
The EPRMP is appropriate for ongoing and existing projects or
non-implemented projects seeking to amend substantially their ECCs
because, as clearly explained by petitioner:
138. The rationale behind requiring only an EPRMP for
projects that have operated initially is to dispense with needless
submissions of new studies as there presumably exists a number of useful
data about the actual environmental impacts of a project as observed. Of course, there is no need to duplicate the tedious processes of an Environmental Impact Statement when the effects of a project have been recorded
upon its implementation and where historical environmental performance
and status of the project and its management plan are already known.
139. Given a project that had operated but stopped for a period of more
than five (5) years, what is required is an environmental impact report
on how well the mitigation and enhancement measures worked, using its
environmental management plan ("EMP") as a yardstick. The convenience of
preparing an EPRMP leaves the proponent to focus on ways to enact
improvements on a project that has been implemented and has operated
with plans for modification, expansion or a restart. This shortcut
allows the proponent to suggest modifications and changes in the
original plan to augment environmental performance without the costly
distraction of undertaking a comprehensive environmental impact
statement study.[2]
140. Being a documentation of the actual cumulative environmental impacts and effectiveness of current measure for single projects,
basic logic dictates that there has to be a project that had physically
come onto fruition and had actually become operational. For, otherwise,
there is no source from which a report can be made on such a single
project.[3]
One must not confuse an EPRMP with an Environmental Impact Statement, or conflate one with the other. The reason, according to Paje, is that:
The appropriate EIA document type vis-a-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 (EIS),
2. Initial Environmental Examination (IEE) Report,
3. Initial Environmental Examination (IEE) Checklist Report,
4. Environmental Performance Report and Management Plan (EPRMP), and
5. Project Description 170 (PD) or Project Description Report (PDR).[4]
It was therefore speculative for the Court of Appeals to have
based the environmental soundness of the Las Piñas Coastal Bay Project
and the Parañaque Coastal Bay Project upon an EPRMP and to have concluded that conducting an EPRMP would not have made any difference
from an environmental impact assessment, since these environmental
assessment document types are distinct varieties of studies in both
processes, requirements, and in all likelihood, findings. Otherwise, the wise bureaucrats in charge of environmental protection in the country would not have required an EPRMP in distinct circumstances and an environmental impact assessment in others.
To be clear, I am not saying that the ECC is an outright permit to
operate, but it is, nonetheless, a necessary step in the process of
acquiring such permit. Here, since Alltech did not submit the correct
environmental impact assessment document type, the ECC issued to it is
incipiently and irreparably defective, hence, should be revoked at once.
For government agencies and local governments should not be misled into
approving the implementation of Alltech's projects based thereon.
Whether actual environmental damage will occur if the project is implemented |
|
For one, aggravated flooding in the Cities of Las Piñas and Parañaque is
conceded to happen as a result of the Las Piñas Coastal Bay Project and
the Parañaque Coastal Bay Project. Even the Court of Appeals has
admitted this when it said "the threat of flooding as a consequence
of land reclamation is conceded and thus the causal link between the
human activity of reclamation and environmental threat of flooding is
established." The assailed Decision summarized petitioner's evidence on this allegation of environmental damage:
Petitioner Villar also commissioned Tricore Solutions, Inc.,
an engineering consultant, to evaluate and assess the impact of the
proposed reclamation project. Tricore came up with a report entitled
"Flood Assessment and Evaluation for Las Piñas City, Parañaque City and
Bacoor, Cavite." In order to determine the existing flood extent along
the vicinity of Las Piñas City, Parañaque City and Bacoor, Cavite, the
following scenarios were considered in the said report: 1) highest
rainfall magnitude (as recorded) without reclamation; 2) highest
rainfall magnitude (as recorded) with reclamation; 3) maximum rainfall
magnitude and maximum high tide with reclamation; 4) highest rainfall
magnitude (as recorded) with the highest storm surge, maximum high tide
and sea water rise brought about by climate change with reclamation, 5)
highest rainfall magnitude, highest storm surge and maximum high tide,
sea water rise- again due to climate change with reclamation; and 6)
highest rainfall magnitude, highest storm surge and maximum high tide,
sea water rise- again due to climate change with reclamation and another
reclamation in Bacoor, Cavite. According to Engineer Carvajal, who is
the President, head hydrologist, sanitary, geotechnical, structural and
coastal engineer of Tricore, based on their hydrologic and hydraulic
calculations, in a worst case scenario, taking into account Alltech's
reclamation project and recorded maximum rainfall brought about by
Typhoon Ondoy and strong winds experienced during Typhoon Pedring and
other factors such as a maximum high tide of 1.44 meters and a one-meter
rise above Mean Sea Level as may be occasioned by climate change, no
less than 37 barangays in the Municipality of Bacoor, 17 barangays in
Las Piñas City and 11 barangays in Parañaque City, will be totally
submerged under 0.15 meters to 5.12 meters of floodwater. In other
words, almost two-thirds of the entire areas of the cities of Las Piñas,
Parañaque and Bacoor will be practically submerged or inundated when
reclamation takes place.[5]
Geological expert Kelvin S. Rodolfo, PhD[6] cites four (4) reasons why reclamation of nearshore Manila Bay is "a very bad idea"[7]:
1. |
Rapid subsidence of coastal lands is enhancing the risk of flooding and high tides. |
|
|
2. |
Among the reasons for this rapid subsidence,
says Rodolfo, is rapid loss of groundwater due to decades of
uncontrolled pumping. Loss of groundwater has also caused the ground
level to fall, leaving these areas vulnerable to flooding.[8] |
|
|
3. |
Storm surges are an ever-worsening threat, due
in part to subsidence, but also because climate change is increasing
the frequency of the strongest typhoons. |
|
|
4. |
Reclaimed coastal areas are very susceptible to liquefaction and enhanced ground-shaking during earthquakes. |
|
|
5. |
These risks are enhanced by DPWH's and JICA's ignoring or minimizing the phenomena in their projects. |
This scientific claim does not stand alone, as other studies, too, have
noted the negative impact of reclamation, specifically of Manila Bay, viz.:
Manila Bay was once a productive fishing area; destructive
fishing practices, massive pollution, and unabated land conversion of
wetlands and coastal areas have contributed to the marine ecosystem's
deterioration. The destruction of Manila Bay's marine ecosystem
threatens the food supply stability of surrounding communities.
Coastal communities around Manila Bay are already exposed to numerous
natural hazards, particularly those related to earthquakes (e.g.
liquefaction, tsunamis) and hydro-meteorological events (e.g., floods,
storm surges). The effects of these hazards are exacerbated by
accelerated land subsidence due to over-extraction of groundwater.
x x x x
The Philippine government has a clear directive to rehabilitate and
preserve Manila Bay through the writ of continuing mandamus issued by
the Philippine Supreme Court. Land reclamation directly contradicts that
mandate. Furthermore, scientific evidence clearly shows the negative
socio-economic effects of reclamation in Manila Bay. More reclamation
project proposals continue to be entertained, nonetheless.[9]
Verily, the question is not "whether actual environmental damage will occur" anymore, but how much more damage will it cause, for it has consistently been found and proven that reclamation had actually and already caused environmental damage. In fact, it is not only the aforementioned areas that will be exposed to flooding and inundation, but also the very reclaimed lands themselves.
For another, these reclamation projects and the eventual construction of road networks and bridges will more likely than not cause direct negative impacts upon the Las Piñas-Parañaque Critical Habitat and Ecotourism Area (LPPCHEA). The Court of Appeals summed up petitioner's evidence on this claim:
The Center for Environmental Concerns-Philippines (CECP)
was also engaged by petitioner Villar to conduct a technical assessment
of the Las Piñas-Parañaque Coastal Bay Project. The study made by CEC-P
involved the identification of plausible impacts of the Las
Piñas-Parañaque Coastal Bay Project on biodiversity and the critical
habitat, on flooding and on the socioeconomic situation of the
residents in the cities of Las Piñas and Parañaque. It did not assess
the whole development plan as described in the proponent's EPRMP. The
main document scrutinized by CEC-P in the study was the EPRMP submitted
by Alltech to the DENR in August 2010 because it considered the same to
be the final report on the proponent's proposed management of the
environmental impacts before the issuance of the March 2011 ECC. The
said EPRMP was the source document of CEC-P on how the proponent expects
its project to affect the landscape and ecology of the project site,
and what measures it has taken or will take to minimize the adverse
effects that may be brought by this change. The CEC-P concluded that as a
large scale project that will change the landscape of the area, the
reclamation can be considered a looming danger to the habitat. The CEC-P
findings are as follows: 1) As to the biophysical resources, the
large-scale project will change the landscape of the area; development
activities that will be undertaken in Manila Bay would likely impact the
natural ecosystems and its ecological functions and services; 2) The
expansion of the reclamation area will deposit and spread additional
sediments to the Las Piñas-Parañaque Critical Habitat Environment Area
(LPPCHEA) which will further destroy habitats of existing biodiversity;
3) With respect to the mangrove ecosystem situated in relation to the
Coastal Bay Project, the coastal construction for the reclamation
project will change the shoreline by altering the hydrodynamic
characteristics of the Bay that include current, wave actions, tidal
fluctuations and transport of sediments along the coasts, which would
restrict circulation of coastal water bodies resulting to degradation of
its water quality and environmental ecosystems; the mangrove ecosystem
is also poised to undergo fundamental alterations and changes since the
planned reclamation, which will begin from the coasts of the LPPCHEA
facing the south China Sea, is likely to threaten and impede the
continuous flow of seawater into the lagoon; 4) With regard to the
biodiversity, the EPRMP, provides little or no information on the
ecological functions of the mangroves, birds, and other living things
which may be found in the reclamation area which suggests a haphazard
study of the natural resources and the particular ecosystem that will be
subject to the reclamation activity; 5) As to the marine life in the
areas, construction activities such as dredging and filling would cause
water turbidity and sedimentation that would result to decline in water
quality, loss of species and toxic contamination of ecosystems; and 6)
As to the socio-economic and cultural effects of the proposed Coastal
Bay Project, one of the foreseen effects on the people would be
diminished aquaculture production as the habitat and breeding ground of
marine life will be destroyed.
According to Frances Quimpo, the Executive Director of the CEC-P, the
study made by CEC-P had established firm bases to conclude that the LP-P
Coastal bay project has not truly addressed the identified threats of
flooding to surrounding areas, threats on biodiversity loss, as well as
the threat of displacement of local livelihood; and that it lacks a
clear scientific study on the flooding hazards of the reclamation,
appropriate mitigation measures to counter the dangers of reclamation to
the LPPCHEA, as well as the potential economic displacement of the
fisher-folks in the area with the destruction of the bottom organisms
that replenish marine life. She further asserted that the absence of an
Environmental Impact Statement (EIS) was but redundant evidence that the
Coastal Bay Project has not undertaken the de rigueur of a
full-fledged environmental study in order to impart scientific
confidence that the proposed reclamation project will not devastate the
surrounding environment, whether human or wildlife, to within a
manageable and acceptable margin. She finally recommended that the
reclamation project be halted until competent, comprehensive, deeper
research and study are conducted to ensure that lives, human or
otherwise, are not unduly and unnecessarily put at the risk of
irreparable harm and damage.
Another member of CEC-P, Giovanni A. Tapang, who is an Associate
Professor in Physics in the National Institute of Physics, also noted
that the coastal bay project lacks complete, multi-faceted blueprint for
addressing the problem of flow of seawater; that Alltech's EPRMP did
not specify measures for the maintenance of the brackish waters, and
engineering interventions that would utilize the access road from Roxas
Boulevard to facilitate sea water flow to the lagoon; and that the bold
claim by Alltech that if the mitigation measures are implemented, the
reclamation might even improve the flooding situation in the two cities,
was not supported by data presented in Alltech's EPRMP.[10]
The Court of Appeals also examined the evidence for respondents. Their pieces of evidence point to this conclusion:
On the other hand, Alltech and the other respondents were able to
establish that scientific and expert studies assessed the potential
flooding and flushing impact that may arise from the coastal bay
project. The expert, objective studies conducted by DCCD, Surbana and
DHI, revealed that if all the recommended mitigating measures were to
be implemented, the Coastal bay project would not aggravate the
flooding situation in the river mouths of Parañaque, Las Piñas-Zapote
Rivers, and it may even reduce the level of flooding.[11]
Hence, even respondents' evidence confirmed the conclusion of the
Court of Appeals that "the threat of flooding as a consequence of land
reclamation is conceded and thus the causal link between the human
activity of reclamation and environmental threat of flooding is
established."
Worse, respondents' position rests on the premise that the recommended mitigating measures being in place would purportedly prevent or "would not aggravate"
the flooding situations and "even reduce the level of flooding."
Rodolfo, however, remains unconvinced and unimpressed by such measures
for being historically ineffective and even aggravating,[12] viz.:
History of ignoring science while building projects that fail
1980s: Flimsy lahar dikes built at Mayan Volcano despite my scientific
objections. Dike building continued until Super Typhoon Reming breached
them all in 2006, killing 1,266 people who had sought safety by living
behind them (Paguican et al. 2009).
1990s: Same lahar-dike builders' mistakes on a much larger scale at
Pinatubo despite scientists' objections. October 1995: Tropical Storm
Mameng lahars breached Gugu dike, totally destroyed Bgy Cabalantian in
Bacolor, Pampanga. Hundreds of people killed.
2000s-present: DPWH builds numerous costly, ineffective floodcontrol
structures in Central Luzon and KAMANAVA. Academician Siringan's and my
objections made no difference. Year after year, they fail, and more
money is spent on cosmetic repairs.
x x x x
KAMANAVA Flood Control Project
2003: P3-billion contract to Nishimatsu to be completed in June 2007.
x x x x
2008: Nishimatsu contract expired. Only 88% completed.
February 2009: DPWH awards local contractor BMWAD Joint Ventures P996 million to complete the remaining works.
October 2009: 94% of the project completed.
July 2010: DPWH: "resumes full blast operations, project will be completed by mid-September." P5.18 billion already spent.
2011: project director Macaria Bartolo says project 99.5% complete.
August 2012: Polder dike overtopped by habagat floods, has to be raised another meter.
August 19, 2013: Malabon residents evacuated as floods rise.
July 16, 2014: Typhoon 'Glenda' floods force 1.000+ Malabon evacuation.
September 23, 2014: Tropical storm "Mario", southwest monsoon and high tide force Malabon evacuations.
July 6, 2015: CAMANAVA flooded.
July 29, 2015: MMDA lists 12 most flooded areas in Malabon City.
October 11, 2015: DPWH-NCR office gives additional 931 million to
Camanava from the P351-billion Flood Management Master Plan for Metro
Manila and Surrounding Areas.
December 15, 2015: Typhoon Nona floods Malabon. ...
And so it goes...
Clearly, respondents' confidence is misplaced. Short of any certainty,
the promise of safety is but ideal and theoretical. In effect,
respondents, again, have clearly acknowledged, nay, admitted that the
proposed reclamation would cause devastating environmental impacts.
I personally commend the Court of Appeals for examining the evidence
painstakingly on this claim of petitioner. But I most respectfully
submit that the conclusion to dismiss the instant petition outright
disregards the rationale for the writ of kalikasan. This writ is a protective remedy, one where the usual balancing of the probative value of evidence is outweighed by the inclination to be cautious about activities that could probably wreak havoc on the environment.
Rule 20 of the Rules of Procedure for Environmental Cases recognizes this principle as a rule of law in assessing the evidence in environmental cases:
RULE 20
PRECAUTIONARY PRINCIPLE
Section 1. Applicability. - When there is a lack of
full scientific certainty in establishing a causal link between human
activity and environmental effect, the court shall apply the
precautionary principle in resolving the case before it.
The constitutional right of the people to a balanced and healthful ecology shall be given the benefit of the doubt.
Section 2. Standards for application. - In applying the precautionary principle, the following factors, among others, may be considered: (1) threats to human life or health; (2) inequity to present or future generations; or (3) prejudice to the environment without legal consideration of the environmental rights of those affected.
Here, everyone seems to concede that flood will come as a result of
the Las Piñas Coastal Bay Project and the Parañaque Coastal Bay Project.
There will also be direct negative environmental impacts on the LPPCHEA
as a result of the reclamation and related construction works. The
Court of Appeals believes respondents' claim that only complete mitigation measures could foil the environmental degradations that the projects will bring about.
But is there certainty that the mitigation measures will come to pass,
and if they do, will they produce what respondents hope they would? I do
not think that respondents' pieces of evidence preponderantly resolve
these questions in their favor. There are lots of variables in the
projections ventured by respondents' evidence.
Worse, the Court of Appeals was made to decide the environmental impact of the projects as if from scratch
simply because the government agency used the wrong document type in
issuing the environmental compliance certificate. Had there been proper
compliance from the start with the process of adducing the necessary
variables in making the environmental assessment through, among others,
the use of the appropriate document type, then we can state, indeed,
that more likely than not, all environmental damages wrought by the
projects will not come to pass.
Petitioner's burden of proof is not proof beyond a reasonable doubt.
All she has to prove is that more likely than not, if the reclamations
do take place, damage to the environment will happen. I believe she has
done that. Respondents merely claim in response that mitigation measures
can offset this environmental damage. Their claim is not that there is
no link between the projects and the harm; rather their claim is that
their proposed mitigation measures might thwart the harm from taking
place.
Clearly, as things stand, the totality of the evidence shows the causal link between the projects and the environmental damage. The mitigation measures may
prevent harm from happening, but that is conditional upon the
mitigation measures being funded and done properly and later working
properly as believed. At their best, thus, respondents' pieces of
evidence prove and stand for an uncertainty in the context of a
lack of full scientific certainty in establishing a causal link between
human activity and environmental effect.
In this light, the Court is in the right to apply the precautionary principle
in resolving the present case because (i) threats to human life or
health as a result of the projects will occur if the mitigation measures
do not work, and there is no certainty that they in fact will; (ii)
inequity to present or future generations will be the costs of the
uncertainties that the mitigation endeavours can only bring about; and
(iii) prejudice to the environment without legal consideration of the
environmental rights of those affected will be the price to pay as the
environmental agency in charge of the environmental assessment failed to
consult and obtain the consent of the residents to be greatly impacted
by the projects.
Taking all things into consideration, the balancing of the evidence
adduced by petitioner and respondents calls for a conclusion that the constitutional right of the people to a balanced and healthful ecology shall be given the benefit of the doubt. This means indulging the present case a second hard look
at what the evidence presents us - an uncertainty that the Court can
remedy by sending back the projects for environmental impact assessment
using the Environmental Impact Statement as the document type and
involving the residents in a genuine, not fake, consultation and
consent-seeking foras. Thereafter, when the environmental people and the
stakeholders have done all these and the conclusion is acceptable as it
is reasonable and both rights- and evidencebased, if this matter ever
reaches the Court of Appeals and the Court again, the justices will no
longer be hard-pressed to choose between competing evidence, and in the
process, to speculate about WHAT IFs and WHAT NOTs.
Whether the actual environmental damage that has been assessed is fatally speculative |
|
The world we live in is not fraught with environmental disasters and
dangers because tree-huggers simply want to scare people from achieving
development. These disasters have come and gone. They are a reality.
We have all been witnesses to them. The lockdown caused by CoVID-19 has
clear environmental aspects to it. And yet, here we go again trying to
ignore the integrity and truthfulness of the science of patience and due diligence in our development endeavours.
What are we going to lose from seeking another and perhaps last round
of weighing and determining the enormous environmental impact of
respondents' large scale reclamation projects?
The only projected losses, if losses they really are, simply equate to the delayed profits and more profits for respondents and their investors. In contrast, if the Court were to allow post-haste the reclamations to go on without first settling the environmental issues, when history beckons, the
Court will be the real proximate cause of the disaster that will be
done to the lives and properties of millions of already impoverished
Filipinos. As it is, the Court and petitioner in her role as a well-respected Senator are the only last bulwark of reason to stop this impending environmental pillage.
Senator Villar is no ordinary petitioner. She carries with her the
weight of the Philippine Senate as one of its outstanding leaders. She
bears the burden of her constituents who stand to be severely affected
by the adverse consequences of respondents' reclamations. She has put
her reputation, if not her political career, into the cross-hairs of the
causes, especially the present one, she tirelessly advocates. If the
Court would not even care to hear her, who else will the Court listen
to?
The issues involved in this case are literally transcendentally important.
The environmental impact will adversely affect Las Piñas and Parañaque
initially and thereafter transcend to contiguous territories and
thereafter engulfing the entire country. It will initially impact the
residents of these localities and thereafter transcend to swallow
communities in the metropolis. The conversation that this case entails
should not stop here and now. Lots are uncertain but can be clarified by
further proceedings below. Massive floodings and other adverse
environmental impacts of the reclamations are not our only choice,
certainly not my only choice. I am still afraid to live in a raft.
Whether an environmentally critical project should be allowed to proceed only in the clearest of cases |
|
The precautionary principle mentioned above should compel the Court to hold that an environmentally critical project should be allowed to proceed in the clearest of cases. Hence, whenever there is doubt about a project's environmental impact, the project must be re-evaluated to investigate, weigh, mitigate, address, assess and resolve the oppositions to it.
The precautionary principle is very crucial especially when the President himself has vigorously espoused a policy against reclamation projects. The President has been recorded to have enunciated this policy in the most colourful and emphatic language clearly for editorial impact. He said:
Not during my time. I will only allow maybe plans of
whatever reclamation if it is in connection with a government project. I
will not allow massive reclamation for the private sector. Not now.
Because if I - if you approve one, you approve all. Ganun 'yan eh.
x x x x
The entire Manila City would be environmentally at peril. So pag-aralan
ninyong mabuti 'yan. For the next administration, whoever gets to be the
president of this country, study it very carefully. Because that Manila
there, that old City is an old city and it will decay if you add so
many things in front of Manila Bay.
x x x x
No - no reclamation. You wait until the next president who would be -
they would look - they might look at it kindly at a different lens.[13]
Independent expert studies also confirm the adverse environmental impact
of reclamations. I have quoted them below in the interest of full
disclosure:
Reclaimed lands are also to blame for the rise of the water
level on the bay which causes massive flooding and storm surges. They
badly affect not just the lives of the residents but also may shut down
local economic activities particularly those in low-lying cities. These
disasters actually intensify the vulnerability of our cities.[14]
Reclamation activities changed the environment such as coastal
morphology, hydro-oceanography, mangrove and coral reefs deterioration.
Other effects are the hill-cutting and tree-cutting of the surrounding
area to get filling materials for the reclamation project. Among the
consequences observed and recorded were flooding, erosions,
sedimentations, and adverse influences on the seawater quality, sea
biota, local depletion of several kinds of fishes such as snappers,
groupers, and shrimps. These have reduced the income of the fishermen,
forcing them to switch to other professions such as becoming tradesmen,
laborers, and farmers.[15]
BIOLOGICAL IMPACTS
The process of coastal land reclamation starts off with sand mining and
dredging operation carried out offshore, followed by backfilling. The
activities carried out during reclamation have direct impacts towards
the coastal ecosystem. The impacts include:
Loss of marine benthic ecosystem
Reclamation activities affect the composition of biodiversity through
the destruction of ecosystems such as coral reefs, sea grass meadows and
mudflats. This will lead to a net decline in faunal biomass and
abundance or a shift in species composition. Once the ecosystem is
disturbed, it will take some time for it to recover to its original
state, depending on the ecosystem's resilience.
x x x x Modification of the ocean floor by reclamation works causes
destruction to habitat of the benthic organisms. The disturbance to
bottom sediment from dredging works and placement of fill materials will
bury and smother bottom dwellers and cause permanent loss of habitat of
benthos. Marine sediment extraction causes disturbance and removal of
benthic in fauna and epifauna (Yasser, 2011).
Alteration of sediment composition caused by dredging and backfilling is
another contributing factor to loss of marine benthic ecosystem.
Sediment composition is a key factor in determining benthos
distribution. Long-term recovery of benthic ecosystem can occur only
where original sediment composition is being restored.
Destruction of buffer zone
Coastal reclamation is often associated with the loss of coastal
ecosystems such as mangroves, seagrasses and mudflats. These ecosystem
acts as natural buffers against wave energy and minimising the impacts
of wave on coastal areas, thus protecting the coastal area from being
flooded and eroded due to wave action.
Removal of the ecosystems will leave the coastal communities vulnerable
to flooding and natural disaster such as tsunami. As widely reported
since 2004 when the worst tsunami in record hit South East Asia,
extensive areas of mangroves can reduce the loss of life and damage
caused by tsunamis by taking the first brunt of the impact and by
dissipating the energy of the wave as it passes through the mangrove
area.
The survival of the fisherfolks at Pulau Betong, south-west of Penang
Island, was attributed to the mangroves growing there. The mangrove
forests had helped to buffer the impact of the tsunami heading inland as
compared to other places that received a direct hit (Penang Economic
Report, Jan. 2005, Vol. 7, Issue 1).
Disruption of food chain
Coastal developments directly disturb the substrates and
microenvironments that benthic macro invertebrates depend on to survive.
x x x x
Mangroves also serve to reduce coastal erosion and is a habitat for many
species of marine life. They serve as a transit place for more than 30
species of migratory birds, and house mudskippers, fish, crustaceans,
and a whole ecosystem of its own. They are a home to all kinds of fish,
snails, cockles, shrimps and crabs, reptiles like snakes and monitor
lizards, migratory and local birds, insects and mammals such as monkeys,
wild boars and otters. Birds seek these places as their sanctuary and
feeding place during their migratory season from October to March.
It is proven that land reclamation does cause disjunctions in the
consistency of suitable habitats for these organisms which we predict
will affect organisms higher in the food chain (Chee & Sim, 2016;
Chee et al., 2017). The stress tolerant species will become dominant and
replace other species as they are able to stand the changes.
Collapsed ecosystems cannot sustain marine organisms that are dependent
on it for survival. Shoreline modification and reclamation works will
affect the existing biotic and abiotic factors that are linked in food
chains. Any changes or disruption to the close relations between certain
species will affect the ecosystem's balance. Removal of primary
producers such as mangrove and seagrasses will affect the rest of the
food chain as they serve as a base where every other organism depends on
directly or indirectly for survival.
Coastal water pollution
Pollution can be controlled to some extent, but ecological and
environmental impacts of reclamation cannot be restored. Suspension of
organics, heavy metals and other pollutants into sea through dredging
activities will cause disturbance to bottom sediments. Land filling with
dredged materials may release contaminants which will have impacts on
marine life. Eventually, low water quality will affect the sea biotas
around the area, and negatively affect the lives of the fishes and coral
reef (Priyandes & Majid, 2009).
Corals that are stressed by siltation, mechanical damage, or pollution
have a greater likelihood of being subjected to diseases (Clark 1996).
As coral reefs are well known as spawning ground, feeding ground, and
nursery ground for enormous number of marine life, its destruction will
cause breakdown in the ecosystem.
Other than that, sea grass leaves improve[d] water quality by absorbing
nutrients in runoff from the land and slowing the velocity of water,
capturing sand, dirt and silt particles. When the bottom sediments are
disturbed during reclamation projects, it causes the release of toxic
chemicals including heavy metals and polychlorinated biphenyls (PCB)
into water column which was trapped by sea grass earlier. The release of
toxic compounds will degrade the water quality and affect the aquatic
life.
Increase in siltation and turbidity
Dredging and extraction of aggregates from the benthic zone or the
seabed is a form of disturbance that leads to increase of suspended
particles in the water column. Dredged material may cause suspended
solids during dredging as a result of substratum disturbance and during
transport to the surface, overflow from barges or leakage from pipelines
during transport between dredged and disposal sites (Yasser, 2011).
Aggregate particles that are too fine to be used are rejected by
dredging boats, releasing vast dust plumes and change the water
turbidity, resulting in major changes to aquatic habitats over a large
area. The ecosystems that will be greatly affected by siltation are the
coral reefs and sea grasses. Siltation kills corals by shading and
smothering them and reduces recruitment of juvenile corals (DENR 2001).
Smothered sea grasses will not be able to take up the sunlight
efficiently to carry out photosynthesis. In addition, increased
turbidity will increase the scattering of light penetrating the water,
causing difficulties to photosynthetic benthic organism to absorb the
sunlight. x x x x
SOCIO-ECONOMIC IMPACTS
Livelihood and fisheries
Coastline changes in the coastal areas due to reclamation will impact
the local community in that area. Local fishers whose livelihood and
source of income depended on the fishing industry are adversely impacted
due to land reclamation. x x x x
Other adverse impact includes the reduction of daily fish catch by the
fishermen, forcing them to either double their efforts in catching fish
or totally abandon their age-old profession to try other jobs (Priyandes
& Majid, 2009). However, without experience and knowledge, it will
be difficult for them to adjust to their new way of life. x x x x
PHYSICAL IMPACTS
(A) Saltwater intrusion and alteration of groundwater system
Land reclamation activities in coastal areas causes changes on local
groundwater systems (Guo & Jiao, 2007). This is because the removal
of crucial ecosystems such as mangrove and mudflats maximises the
impacts of wave on coastal areas, causing seawater intrusion into
groundwater. This will affect nearby agriculture land as the pH of the
soil is altered thus making it unsuitable for plant growth, especially
species that are sensitive to salinity changes. x x x x
OTHER IMPACTS
Temporary increase in noise pollution and air quality is likely to occur
at the site, caused by construction and reclamation processes. Dust and
particulate generation due to movement into and off the site like
scrappers, bulldozers, and loaders and due to excavated soil is the
negative impact of temporary workforce (Yasser, 2011). This gives a
negative psychological and physical impact to the people around the
area. x x x x
The stress level of the residents might increase due to traffic
congestion as many routes will be inaccessible for reclamation
development Therefore, the residents were left with no choice but to
take alternative routes, causing inconveniences due to the restrictive
access.[16]
Contrary to the ponencia's dismissive attitude towards the foregoing studies, these studies show that the precautionary principle apply in this case. The Court cannot ignore these studies because they are cited precisely to justify the plausibility of the project's adverse environmental impact. The proper forum for considering these and other studies is of course the Department of Environment and Natural Resources. However, by affirming the assailed Decision of the Court of Appeals, and approving the commencement of the project, the Court is thereby foreclosing
any further deliberate studies on the real adverse impact of the
project. This could prove to be disastrous for the communities near the
project site.
Notably, the Rules on Evidence allows the Court to take judicial notice of certain facts, such as the laws of nature. In MMDA v. Concerned Citizens of Manila Bay,[17]
the Court took judicial notice of the environmental pollution as a
cause of climate change, its ill effects including but not limited to
the destruction of forests, and other critical habitat, oil spills, and
the unabated improper disposal of garbage in Manila Bay.[18]
So too, can we take judicial notice not only of the independent expert
studies which either confirm or dispel the adverse environmental impact
of reclamations. It is our bounden duty to leave no stone unturned when
it comes to the safety and protection of our environment.
ACCORDINGLY, I vote to grant the petition in part, to revoke the
environmental compliance certificate issued for the Las Piñas Coastal
Bay Project and the Parañaque Coastal Bay Project, and to refer these
projects back to the Department of Environment and Natural Resources for
the proper conduct of the environmental impact assessment using as
document type the Environmental Impact Statement.
[1] 732 Phil. 498 (2015).
[2] Reflections of J. Marvic M.V.F. Leonen dated April 26, 2021, pp. 5-6.
[3] Rollo, p. 106.
[4] Supra note 1 at 599-600.
[5] Id. at 19-19A.
[6] PhD in Geological
Sciences, University of Southern California, 1967 MS in Geological
Sciences, University of Southern California, 1964 BS in Geology,
University of the Philippines, 1958; Fellow, American Association for
the Advancement of Science; Fellow, Geological Society of America;
American Geophysical Union; Geological Society of the Philippines;
Society of Sedimentary Geologists (SEPM).
[7] Dangerous Aspects of
Reclamation Along Manila Bay and Laguna de Bay: NAST Policy Discussion
on the Hazards, Risks and Profits of Reclamation, February 15, 2016,
Kelvin S. Rodolfo.
[8] Rina Jimenez-David,
https://opinion.inquirer.net/93493/why-reclamation-is-a-very-bad-idea,
posted 12:20 AM March 06, 2016; Last Accessed March 9, 2021 14:43.
[9] Eco, R.C., Manila Bay
reclamation and its impacts on the people and environment,
https://ui.adsabs.harvard.edu/abs/2018AGUFMPA43E138x_5E/abstract, last
accessed March 9, 2021, 15:08.
[10] Rollo, (Vol. 1), pp. 19-A-22.
[11] Id. at 49.
[12] Dangerous Aspects of
Reclamation Along Manila Bay and Laguna de Bay: NAST Policy Discussion
on the Hazards, Risks and Profits of Reclamation, February 15, 2016,
Kelvin S. Rodolfo.
[13] SPEECH OF PRESIDENT
RODRIGO ROA DUTERTE DURING THE INAUGURATION OF THE SANGLEY AIRPORT
DEVELOPMENT PROJECT AND PRESENTATION OF THE SANGLEY POINT INTERNATIONAL
AIRPORT PROJECT
(https://pcoo.gov.ph/wpcontent/uploads/2020/02/20200215-Speech-of-President-Rodrigo-Roa-Duterte-during-theInauguration-of-the-Sangley-Airport-Development-Project-and-Presentation-of-the-Sangley-PointInternational-Airport-Project-converted.pdf).
[14]
https://www.smartcitiesdive.com/ex/sustainablecitiescollective/unsustainable-truth-about-landreclamation-worsening-impacts-manila-bay-r/1271899/
[15] http://eprints.utm.my/id/eprint/2066/1/MRafeeMajid2009_ImpactReclamationActivities.pdf
[16] Impacts of Coastal
Reclamation in Malaysia, published by Sahabat Alam Malaysia (Friends of
the Earth Malaysia), accessed at
https://foe-malaysia.org/wpcontent/uploads/2020/12/190226_Impacts_of_Coastal_Reclamation_in_Malaysia-compressed.pdf
[17] 595 Phil. 305, 320 (2008).
[18] Id. at 320.