Republic of the Philippines

SUPREME COURT
Manila
EN BANC

RESIDENT MARINE MAMMALS OF

THE TAON STRAIT PROTECTED
SEASCAPE, et al.,
Petitioners,
- versus -

G.R. NO. 180771

FOR: INJUNCTION

Secretary Angelo Reyes, et al.,

Respondents.
x-----------------------/
Out from nowhere a pod of dolphins came. There were so many of them. A pair of whales
about 10 meters long also appeared and flanked me on both sides. While the dolphins
alternately nudged my body with their fins to shore, the rest of the pod stayed close, around a
meter away, apparently trying to make sure no harm would come to me.
- Ronnie Dabal of Puerto Princesa, Philippines

MEMORANDUM OF LAW
Your Petitioners respectfully submit as their:
PREFATORY
A headline in a Philippine daily
screams:

Dolphins

save

Palawan

fisherman!
The news is about the saga of a tuna
fisherman,
Princesa,

Ronnie

Dabal

Philippines

who

from

Puerto

was

saved

miraculously by dolphins and whales

after more than ten (10) hours of being
adrift at sea.1
Was

it

really

miracle?

For

centuries of human existence, tales of

dolphins and whales rushing to the rescue
of hapless humans are indeed aplenty.
1

Page 1, Philippine Daily Inquirer, December 17, 2008 issue

Stories of dolphins, whales and porpoises, collectively known as cetacea,

abound in world mythology.2
This popularity may stem from the impressive size of the large whales,
or the playful exertions of the acrobatic dolphins, not to mention the many
stories of cetacea coming to the aid of shipwrecked sailors and stranded
fishermen.3
Several themes commonly appear in ancient mythology from Greece to
the tiny islands of the Pacific, though there is one element present in all: since
time immemorial humans and cetacea have shared a very close and quite
unique bond. Indeed, we have even immortalized the dolphin in the heavens
above us in the stellar constellation delphinus.4
To the dolphin alone nature has given that which the best philosophers
seek: FRIENDSHIP FOR NO ADVANTAGE! Though it has no need of help of any
man, yet it is a genial friend to all and has helped man.5
As aptly written by Oppian6 of Ancient Greece in his poem Halieutica:
Diviner than the Dolphin is nothing yet created, for indeed they were
aforetime men and lived in cities along with mortals, butthey exchanged
the land for the sea, and put on the form of fishes; but even now, the
righteous spirit of men in them preserves human thoughts and human
deeds.
This case is all about them. It is all about their protection, preservation
and perpetuation so that stories of Ronnie Dabal may endure for ages.
This is also about some of us ingrate beneficiaries of their kindness whose greed and materialism may sink our species to extinction. And when that
time comes, Your Petitioners may be there to try to save the day for us, Your
Honors.
Or, can they?
2

www.people-oceans-dolphins.com
Id
4
Id
5
Plutarch, Ibid
6
Also known as Oppinos (early third century AD) of Cilicia in south-east Asia Minor, writer of Greek
didactic poetry in hexameters. His Halieutica (on fishing) is in five books; the Cynegetica (on hunting),
in three books, is also ascribed to him but seems to be the work of a different poet, a native of Syria, though
perhaps of the same name. Both poems contain passages of power and beauty, despite the unpromising
material. (http://www.answers.com/topic/oppian)
3

STATEMENT OF THEIR CASE

This is a suit for certiorari, mandamus and injunction of extreme
urgency to enjoin Public Respondent DOE and Private Respondent Japan
Petroleum Exploration, Ltd. (JAPEX) as well as the latters agents, privies or
assigns from implementing a national government project undertaken though a
Service Contract (Service Contract No. 46) entered into by and between them
and to annul the same for willful and gross violation of the Philippine
Constitution, Philippine Laws and Regulations and Multilateral Environment
Agreements.
The illegal authorizations given by Public Respondents, which are
equivalent to grave abuse of discretion amounting to lack or excess in their
respective jurisdiction, enabled Private Respondent JAPEX to proceed with the
service contract over Your Petitioners habitat, the Taon Strait Protected
Seascape, resulting to their grave and irreparable damage and prejudice.
These illegal acts must be corrected through this instant special civil action as
Petitioners have no plain, adequate, speedy and adequate remedy in the
ordinary course law.
This case also seeks judicial declaration to the effect that service
contracts which were entered into by public respondent Department of Energy
(DOE) pursuant to Presidential Decree No. 87 and involving the exploration,
development and exploitation of our countrys petroleum resources contravene
Sec. 2, Article XII of the 1987 Philippine Constitution.
Your Petitioners adopt and hereby replead, mutatis mutandis, the
statement of the case in the memorandum of the petitioners in Central
Visayas Fisherfolks Development Center [FIDEC], et al v. Angelo Reyes, et
al, G.R. No. 181527 which is consolidated with herein case.
STATEMENT OF FACTS
Your Petitioners adopt and hereby replead, mutatis mutandis, their
statement of facts contained in their initiatory pleading as well as the
admitted factual antecedents in the comment by the Honorable Solicitor
General and the statement of facts in the memorandum of the petitioners in

Central Visayas Fisherfolks Development Center [FIDEC], et al v. Angelo

Reyes, et al, G.R. No. 181527 which is consolidated with herein case.
They further aver and hereby manifest that sometime in the middle of
the current year, private respondent JAPEX through its privies and assigns
publicly announced its withdrawal from the project. This notwithstanding,
public respondent DOE, through its Regional Director of Region VII proclaimed
that they will still push through with the assailed Service Contract No. 46 and
intends to re-bid it to interested parties.7
ISSUES
I.

DO PETITIONERS HAVE LOCUS STANDI?

II.

IS SERVICE CONTRACT NO. 46 AND OTHER SIMILAR CONTRACTS

ENTERED INTO BY PUBLIC RESPONDENT DEPARTMENT OF ENERGY
(DOE) AND PRIVATE RESPONDENT JAPEX CONSTITUTIONAL?

III.

DID PUBLIC RESPONDENT DEPARTMENT OF ENVIRONMENT AND

NATURAL

RESOURCES

(DENR)

COMMIT

GRAVE

ABUSE

OF

DISCRETION WHERE IT ALLOWED PRIVATE RESPONDENT JAPEX TO

UNDERTAKE

OIL

EXPLORATION

INSIDE

THE

TAON

STRAIT

PROTECTED SEASCAPE ALTHOUGH THE AREA DOES NOT HAVE A

PROTECTED AREA MANAGEMENT PLAN YET?
IV.

DID PUBLIC RESPONDENT DENR COMMIT GRAVE ABUSE OF

DISCRETION WHERE IT ISSUED AN ECC TO PRIVATE RESPONDENT
JAPEX WITHOUT REQUIRING THE LATTER TO UNDERGO THE EIA
PROCESS FOR ITS PROJECT?

V.

IS THE PHILIPPINE GOVERNMENT LIABLE FOR INTERNATIONAL

DELICT FOR BREACH OF THE GENERALLY-ACCEPTED PRINCIPLES
ENSHRINED IN MULTILATERAL ENVIRONMENTAL AGREEMENTS
WHICH IT IS SIGNATORY?

In addition to the foregoing issues, Your Petitioners adopt and hereby

replead, mutatis mutandis, the issues and the corresponding arguments raised
in the memorandum of the petitioners in Central Visayas Fisherfolks
Development Center [FIDEC], et al v. Angelo Reyes, et al, G.R. No. 181527
which is consolidated with herein case.
DISCUSSION AND ARGUMENT
I
7

Cebu Daily News, May 16, 2008 issue

Petitioners Cetacea Have

Sustained And Will Sustain
Direct Injury By Reason
Of The Oil Exploration Project
1. Locus standi or legal standing has been defined as a personal and
substantial interest in a case such that the party has sustained or will sustain
direct injury as a result of the governmental act that is being challenged. The
gist of the question on standing is whether a party alleges such personal stake
in the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court depends for
illumination of difficult constitutional questions.8
2. A party who assails the constitutionality of a statute must have a
direct and personal interest.

It must show not only that the law or any

governmental act is invalid, but also that it sustained or is in immediate danger

of sustaining some direct injury as a result of its enforcement, and not merely
that it suffers thereby in some indefinite way. It must show that it has been or
is about to be denied some right or privilege to which it is lawfully entitled or
that it is about to be subjected to some burdens or penalties by reason of the
statute or act complained of.9
3. For a concerned party to be allowed to raise a constitutional
question, it must show that (1) it has personally suffered some actual or
threatened injury as a result of the allegedly illegal conduct of the
government, (2) the injury is fairly traceable to the challenged action, and (3)
the injury is likely to be redressed by a favorable action.10
4. By these recitals and those alleged in their initiatory pleading,
petitioner dolphins, whales, porpoises and other cetacean species will
definitely suffer - and have in fact suffered - actual or threatened injury as a
result of constitutionally infirmed oil exploration project within their habitat at
Taon Strait Protected Seascape. They will indubitably be adversely affected
should the assailed acts of respondents continue being unrestrained by the
Honorable Supreme Court.

Anak Mindanao Party-List Group v. The Executive Secretary, G.R. No. 166052, August 29, 2007
Ibid
10
Ibid
9

5. It is of judicial notice that there are proven actual or potential

adverse effects to marine mammals if their habitats are disturbed or
destroyed. In the case of Okinawa Dugong (Dugong Dugon), et al. vs.
Secretary of Defense Robert Gates, et al., No. C03-4350 MHP, the United
States District Court of the Northern District of California confirmed that:
It is undisputed that Henoko Bay is dugong habitat and that
seagrass beds found in the Bay are dugong feeding grounds. It is also
undisputed that dugong have been observed to feed in and traverse
Henoko Bay. The record contains considerable disagreement among
plaintiffs and defendants experts regarding the extent and degree to
which the dugong would be adversely affected. But this does not disturb
the undisputed fact that Henoko Bay is dugong habitat and therefore,
construction and operation of a military facility in and near the Bay could
have potential adverse effects. These potential adverse effects include
physical destruction of the Okinawa dugong resulting from contamination
of seagrass feeding grounds and collisions with boats and vessels, as well
as longterm immune and reproductive damage resulting from exposure to
toxins and acoustic pollution.
6.

These

unpalatable

effects

on

marine

mammals

caused

by

anthropogenic acoustics such as seismic surveys and devises employed in oil

exploration have been scientifically documented, although the impact may vary
from one sub-species to another. In a report to the Marine Mammal Commission
of the United States,11 the Advisory Committee on Acoustic Impacts on Marine
Mammals reveals that:
Marine mammals have evolved over millions of years and rely on
sound for vital life functions. Anthropogenic sound in the oceans has
increased since the start of the industrial revolution. Increases in
background noise levels, as well as the number of individual sound sources,
may have adverse effects on marine mammals, the extent and type of which
are not well understood. These sound sources include, among others,
vessels, sonar operations, seismic surveys, coastal construction, and
acoustic harassment devices.
The introduction of anthropogenic sound into the marine
environment is a by-product of modern life. There are significant, tangible
benefits derived from the protection provided by national defense, the
energy supplied by oil and gas exploration, the seismic research carried out
to enable prediction of earthquakes and tsunamis, and the transport of
goods and materials by commercial shipping. In addition, marine mammals
are an important component of marine ecosystems, with esthetic,
recreational, and economic significance and value and should be protected.
Historically, the balancing among multiple societal interests has been a
recurring theme of legislation and national policy formulation that continues
to the present.
Recent cetacean strandings coincident with exposure to naval or
seismic operations have increased public concern about the effects of
anthropogenic sound (Cox et al., 2006). Although no scientific correlation
has been established, there is currently sufficient information about four
beaked whale stranding events coincident with military mid-frequency sonar
use to conclude that they were associated with, and most likely caused by,
11

http://www.mmc.gov/sound/committee/pdf/soundFACAreport.pdf

exposure to the sonar. These occurred in Greece (1996), the Bahamas

(2000), Madeira (2000) and Canary Islands (2002).
7. Comparative studies show that noise from an airgun array in seismic
surveys produces 255 decibels while that coming from devises used in oil
exploration emits between 212-230 decibels (See table below).
Natural and human-made source noise comparisons

Noise source

Maximum source level

Remarks

Reference

Undersea earthquake

272 dB

Magnitude 4.0 on Richter

scale (energy integrated
over 50Hz bandwidth)

Wenz, 1962

Seafloor volcano eruption

255+ dB

Massive steam explosions

Deitz and Sheehy, 1954;

Kibblewhite, 1965; Northrop,
1974; Shepard and Robson,
1967; Nishimura, NRL-DC,
pers. comm., 1995

Airgun Array (Seismic)

255 dB

Compressed air discharged

into piston assembly

Johnston and Cain, 1981;

Barger and Hamblen, 1980;
Kramer et al, 1968

Lightning strike on water

surface

250 dB

Random events during

storm at sea

Hill, 1985; Nishimura, NRLDC, pers com, 1995

Seismic exploration
devices

212-230 dB

Includes vibroseis,
sparker, gas sleeve,
exploder, water gun and
boomer seismic profiling
methods

Johnston and Cain, 1981;

Holiday et al., 1984

Container ship

198 dB

Length 274 m; speed 23

knots

Buck and Chalfant, 1972;

Ross, 1976; Brown, 1982b;
Thiele and Odegaard, 1983

Supertanker

190 dB

Length 340 m; speed 20

knots

Buck and Chalfant, 1972;

Ross, 1976; Brown, 1982b;
Thiele and Odegaard, 1983

8. In contradistinction, Section 78 [b] of the Implementing Rules and

Regulations of Presidential Decree No. 984, otherwise known as the Pollution
Decree of 1972 sets following as the maximum allowable noise levels in general
areas of human settlements:
Table I. Environmental Quality Standards for Noise in General Areas:
CATEGORY OF AREA

DAYTIME
50 db

MORNING
AND EVENING
45 db

AA (For section or contiguous area which

requires quietness such as areas within 100
meters from school -sites, nursery schools,
hospitals, and special homes for the aged)
A (For section or contiguous area which is
primarily used for residential purposes)
B (For section or contiguous area which is
primarily a commercial area)
C (For section primarily reserved as a light
industrial area)
D (For section which is primarily reserved as a
heavy industrial area)

NIGHTTIME
40 db

55 db

50 db

45 db

65 db

60 db

55 db

70 db

65 db

60 db

75 db

70 db

65 db

9. Where man can only legally endure noise of up to 75 decibels in his

terrestrial abode, it is well-nigh impossible for marine mammals to withstand
255 decibel of noise within their marine or submarine habitats without being
injured or killed. This is plausible since it is established that sound travels five
(5) times faster underwater than above ground.12 The effect of underwater
12

http://oceanservice.noaa.gov/facts/sound.html

noise caused by oil exploration to marine mammals is therefore immediate and

fatal.
10. By applying the direct injury test, Your Petitioners-marine mammals
of Taon Strait must have possessed legal standing to sue when they filed this
suit since they have sustained or will sustain direct injury by reason of the
illegal oil exploration project in their habitat.
Granting Legal Standing
To Petitioner Cetacea Is
In Accord With The Rhythm
And Harmony Of Nature
11. Section 16, Article II of the 1987 Philippine Constitution declares as a
state policy the protection and advancement of the right of the people to a
balanced and healthful ecology in accord with the rhythm and harmony of
nature. This provision in our Constitution is the approximation to the so-called
Wild Law13 of Ecuador.
12. The Ecuadorian Constitution in its very recent amendment has
granted, inter alia unto nature the inalienable right "to exist, flourish, and
evolve." It also gave the Ecuadorian government and its citizens the "duty and
right" to file lawsuits for any damage done to their ecosystems and natural
communities.14
13. While most of the world views the Ecuadorian wild law as
revolutionary, one need not stray afar. In as early as 1987, the Philippines had
incorporated the very precepts of wild law to its constitution in what is now
known as Section 16 of Art. II in the Philippine Constitution.
14. In nature, there is rhythm and harmony. There is rhythm in the
season as there is time for preparing the soil, a time for sowing seeds, a time
for tending the plants and a time to harvest the fruits. There is harmony in
nature when all of these elements conspire with each other in order to provide
the tiller good harvest.
15. Nature means the created world in its entirety. Such rhythm and
harmony indispensably include, inter alia, the judicious disposition, utilization,
13

Wild Law is a term coined by Lawyer Cormac Cullinan of South Africa

Article 1 of the new "Rights for Nature" chapter of the Ecuador constitution reads: "Nature or
Pachamama, where life is reproduced and exists, has the right to exist, persist, maintain and regenerate
its vital cycles, structure, functions and its processes in evolution. Every person, people, community or
nationality, will be able to demand the recognitions of rights for nature before the public bodies."
14

management, renewal and conservation of the country's forest, mineral, land,

waters, fisheries, wildlife, off-shore areas and other natural resources to the
end that their exploration, development and utilization be equitably accessible
to the present as well as future generations.15
16. There is also rhythm in our ecosystem16. Except probably for modern
man, each species functions according to the purpose of its existence.
17. In our marine ecosystem for instance, mangroves serve among others
as nursery and refuge to fish and other marine life as well as feed nutrients to
coral reefs. On the other hand, seagrasses are good source of food to them,
especially to the manatees while at the same time taking up dissolved nutrients
and trapped sediments in order to produce water clarity. Coral reefs, which
function as marine forests provide protection and shelter for many different
species of fish and other marine habitus. Without coral reefs, these fish and
other marine life will be left homeless and nowhere to have their babies
weaned.
18. The importance of marine mammals to our ecosystem cannot be
overemphasized. It is beyond pecuniary estimation. Their value to our
ecosystem is acknowledged by the Marine Mammals Act of the United States
where it ordains in its Section (2) that:
(1) Certain species and population stocks of marine mammals are, or may
be, in danger of extinction or depletion as a result of mans activities;
(2) Such species and population stocks should not be permitted to diminish
beyond the point at which they cease to be significant functioning element in the
ecosystem of which they are a part, and consistent with this major objective, they
should not be permitted to diminish below their optimum sustainable population.
Further measures should be immediately taken to replenish any species or
population stock which has already diminished below that population. In particular,
efforts should be made to protect essential habitats, including the rookeries, mating
15

Minors Oposa, et al. v. Factoran, et al., G.R. No. 101083 July 30, 1993
An ecosystem is a natural unit consisting of all plants, animals and micro-organisms (biotic factors) in an
area functioning together with all of the non-living physical (abiotic) factors of the environment. The term
ecosystem was coined in 1930 by Roy Clapham to denote the combined physical and biological
components of an environment. British ecologist Arthur Tansley later refined the term, describing it as
"The whole system, including not only the organism-complex, but also the whole complex of physical
factors forming what we call the environment". Tansley regarded ecosystems not simply as natural units,
but as "mental isolates". Tansley later defined the spatial extent of ecosystems using the term "ecotope".
Central to the ecosystem concept is the idea that living organisms interact with every other element in their
local environment. Eugene Odum, a founder of ecology, stated: "Any unit that includes all of the organisms
(ie: the "community") in a given area interacting with the physical environment so that a flow of energy
leads to clearly defined trophic structure, biotic diversity, and material cycles (ie: exchange of materials
between living and nonliving parts) within the system is an ecosystem. The human ecosystem concept is
then grounded in the deconstruction of the human/nature dichotomy and the premise that all species are
ecologically integrated with each other, as well as with the abiotic constituents of their biotope.
(http://en.wikipedia.org/wiki/Ecosystem)
16

grounds, and areas of similar significance for each species of marine mammal from
the adverse effect of mans actions;
x x x x
(6) Marine mammals have proven themselves to be resources of great
international significance, aesthetics and recreational as well as economic, and it is
the sense of the Congress that they should be protected and encouraged to develop
to the greatest extent feasible commensurate with sound policies of resource
management and that the primary objective of their management should be to
maintain the health and stability of marine ecosystem. Whenever consistent with
this primary objective, it should be the goal to obtain an optimum sustainable
population keeping in mind the carrying capacity of the habitat.
19. Biodiversity is essential to the functioning of the ecosystems. Each
species plays a unique role within an ecosystem and every species is dependent
on others for food, shelter, or other resources. The loss of a single species like
Your Petitioners can have profound effects to the ecosystem and to the
environment as a whole.
20. According to Dr. Lemnuel V. Aragones of the University of the
Philippines, a marine scientist who for more than a decade have been
conducting studies of marine mammals in Taon Strait, dolphins and their
cetacean relatives play a very important role to the marine ecosystem at the
narrow strait.
21. He said that being the top predators, they maintain the best genepool of the fish stocks, particularly those that we humans consume. The best of
the stocks are those healthy populations that are left to propagate instead of
those possibly sick stocks whose disease may be transferred to humans who
consume them. Dr. Aragones further explained that the first that dolphins
consume would usually be the fish that are weak and maybe sick as they would
be easier to catch.
22. In unraveling the seeming mysterious attitude of dolphins as saviors
of helpless humans at sea, Dr. Aragones pointed out that this in effect is a
manifestation of their selflessness or exhibition of 'altruism' - a very high level
of behavior, most likely representing a very high level of intelligence as
reflected by their highly social structure.
23. Petitioners cetacea should be given legal standing in suits involving
their protection, preservation and perpetuation. Their decimation or extinction
would undoubtedly disturb the symbiosis of nature and cause imbalance to the
ecology. As such, the right of the Filipino people to a balanced ecology that is
in accord with the rhythm and harmony of nature would be thereby violated.

10

Legal Standing Is Pure

Discretion On The Part
Of the Honorable Court
24. The question on locus standi is always discretionary. Being just a
procedural technicality, it may be waived by the Court in the exercise of its
discretion. This is the principle laid down in Prof. Randolf S. David, et al. v.
Gloria Macapagal-Arroyo17 where it was held:
It must always be borne in mind that the question of locus standi is but
corollary to the bigger question of proper exercise of judicial power. This is the
underlying legal tenet of the "liberality doctrine" on legal standing. It cannot be
doubted that the validity of PP No. 1017 and G.O. No. 5 is a judicial question which
is of paramount importance to the Filipino people. To paraphrase Justice Laurel, the
whole of Philippine society now waits with bated breath the ruling of this Court on
this very critical matter. The petitions thus call for the application of the
"transcendental importance" doctrine, a relaxation of the standing requirements for
the petitioners in the "PP 1017 cases."
25. Environmental suits should even enjoy a much higher level of
liberality on legal standing since what usually at stake in environmental
litigations are the very elements on earth that lend synergy to this thing called
life. After all, the right of nature to exist and flourish and the natural order of
things even precede humankind and governments.18 They therefore should be
immune from whatever procedural niceties and gauntlets invented by man.
26. For quite a long time, we were made to believe on the conventional
thinking that all laws were established for men's sake.19 If lessons are not
learned, this paradigm has led us to the abject state that we are now in
climate change, mountains of garbage, incurable diseases and sea level rise,
just to name a few.
27. In its landmark environmental jurisprudence in Metro Manila
Development Authority, et al. v. Concerned Residents of Cavite 20, this
Honorable Court is emphatic in recognizing the need to address environmental
degradation with utmost dispatch:
The need to address environmental pollution, as a cause of climate change,
has of late gained the attention of the international community. Media have finally
trained their sights on the ill effects of pollution, the destruction of forests and other
critical habitats, oil spills, and the unabated improper disposal of garbage. And
rightly so, for the magnitude of environmental destruction is now on a scale few
ever foresaw and the wound no longer simply heals by itself. But amidst hard
17

G.R. No. 171396, May 3, 2006

Paraphrasing Oposa, Ibid
19
Legal Theory on hominum causa omne jus constitutum posited by Roman jurist Hermogenianus in
the 3rd or 4th century AD
20
G.R. No. 171947, Dec. 18, 2008
18

11

evidence and clear signs of a climate crisis that need bold action, the voice of
cynicism, naysayers, and procrastinators can still be heard.
28. Depriving legal standing to the dolphins and other ceteacean species
to whom are scientifically proven to be gifted with intelligence and cognition
may be difficult to divine where the same rules allow a ship, a corporation, or
even an estate to sue. This argument is the gist of the passionate dissent by
Justice William Douglas before an almost equally divided U.S. Supreme Court in
the famous case of Sierra Club v. Rogers C.B. Morton, et al.21 where he
argued that:
Inanimate objects are sometimes parties in litigation. A ship has a legal
personality, a fiction found useful for maritime purposes. The corporation sole a
creature of ecclesiastical law - is an acceptable adversary and large fortunes ride on
its cases. The ordinary corporation is a person for purposes of the adjudicatory
processes, whether it represents proprietary, spiritual, aesthetic, or charitable
causes.
Mineral King is doubtless like other wonders of the Sierra Nevada such as
Tuolumne Meadows and the John Muir Trail. Those who hike it, fish it, hunt it, camp
in it, frequent it, or visit it merely to sit in solitude and wonderment are legitimate
spokesmen for it, whether they may be few or many. Those who have that intimate
relation with the inanimate object about to be injured, polluted, or otherwise
despoiled are its legitimate spokesmen.
The Solicitor General, whose views on this subject are in the Appendix to
this opinion, takes a wholly different approach. He considers the problem in terms
of government by the Judiciary. With all respect, the problem is to make certain
that the inanimate objects, which are the very core of Americas beauty, have
spokesmen before they are destroyed. It is of course, true that most of them are
under the control of a federal or state agency. The standards given those agencies
are usually expressed in terms of the public interest. Yet public interest has so
many differing shades of meaning as to be quite meaningless on the environmental
front. Congress accordingly has adopted ecological standards in the National
Environmental Policy Act of 1969, Pub.L. 91-90,83 Stat. 852, 42 U.S.C. 4321 et seq.,
and guidelines for agency action have been provided by the Council on
Environmental Quality of which Russell E. Train is Chairman.
Yet the pressures on agencies for favorable action one way or the other are
enormous. The suggestion that Congress can stop action which is undesirable is
true in theory; yet even Congress is too remote to give meaningful direction and its
machinery is too ponderous to use very often. The federal agencies of which I speak
are not venal or corrupt. But they are notoriously under the control of powerful
interests who manipulate them through advisory committees, or friendly working
relations, or who have that natural affinity with the agency which in time develops
between the regulator and the regulated.
As early as 1894, Attorney General Olney predicted that regulatory agencies
might become industry- minded, as illustrated by his forecast concerning the
Interstate Commerce Commission:
The Commission ..... is, or can be made, of great use to the railroads. It
satisfies the popular clamor for a government supervision of railroads, at the same
time that that supervision is almost entirely nominal. Further, the older such a
21

92 S.Ct. 1361 (1972) (USA)

12

commission gets to be, the more inclined it will be found to take the business and
railroad view of things. M. Josephson, The Politicos 525 (1938).
The voice of the inanimate object, therefore, should not be stilled. That does
not mean that the judiciary takes over the managerial functions from the federal
agency. It merely means that before these priceless bits of Americana (such as a
valley, an alpine meadow, a river, or a lake) are forever lost or are so transformed as
to be reduced to the eventual rubble of our urban environment, the voice of the
existing beneficiaries of these environmental wonders should be heard.
Perhaps they will not win. Perhaps the bulldozers of progress will plow
under all the aesthetic wonders of this beautiful land. That is not the present
question. The sole question is, who has standing to be heard?
29. Yes, perhaps in this
case the dolphins and the whales
may not win at all. Perhaps, the
oil

rigs

ultimately

of

progress

plow

under

may
and

continuously drill at 230 decibels

beneath their habitat at Taon
Strait

eventually

killing

or

maiming them like what had

befallen on one of their kind in
the picture shown at right.
30. Their wails to be
heard before this last bastion of justice should not be stilled by any procedural
gobbledygook in which they did not even take part of when crafted by their
homo sapiens friends.
31. As in Sierra Club, the inevitable question must be this: can they sue
those who are wont in destroying their home? If the current global sentiment is
to be the gauge, the answer should be a resounding yes!
Dolphins and Cetacea are
Third Party Beneficiaries In
The Bonn Convention on Conservation
Of Migratory Species and Wild Animals
Which the Philippines Is a Signatory

32. Beginning February 23, 2006, Petitioners Cetacea are now both listed
under the category of Mammalia in Appendix I and Appendix II of the Bonn
Convention for the Conservation of Migratory Species.22
22

http://www.cms.int/about/index.htm (website of UNEP and CMS of the United Nations)

13

33. Those listed under Appendix I are migratory species that are
endangered to be extinct while those listed under Appendix II are migratory
species which have an unfavorable conservation status and which require
international agreements for their conservation and management, as well as
those which have a conservation status which would significantly benefit from
the international cooperation that could be achieved by an international
agreement.23
34. The Philippine Government as one of the parties to the aforesaid
convention has acknowledged the importance of migratory species being
conserved and agreed to take action to this end whenever possible and
appropriate, paying special attention to migratory species the conservation
status of which is unfavorable, and taking individually or in co-operation
appropriate and necessary steps to conserve such species and their habitat.24
35. Such a commitment by the Philippine Government to them is in the
nature of a stipulation pour autrui. In contract law, a stipulation pour autrui is
a stipulation in favor of a third person (in this case, a party or a species)
conferring a clear and deliberate favor upon him (or it), which stipulation is
found in a contract entered into by parties neither of whom acted as agent of
the beneficiary.25
36. Being third party beneficiaries thereof, Your Petitioners may validly
demand from the Philippine Government, through their representatives or
stewards, the performance of its treaty obligation and commitment by way
enjoining its state organs from doing acts or projects which may otherwise
injure them or threaten their existence.
37. This posture of Your Petitioners is consistent with the rule laid in
down in the early case of Uy Tam and U Yet v. Thomas Leonard, et al26,
where it was held that:
Should the contract contain any stipulation in favor of a third person, he
may demand its fulfillment, provided he has given notice of his acceptance to the
persons bound before it may have been revoked.

23

Arts. III & IV, Convention for Conservation of Migratory Species (CMS)
Fundamental Principle No. 1, Art. II, Ibid
25
Marmont Resot Hotel Enterprises v. Federico Guiang, et al., G.R. No. 79734, December 8, 1988
26
G.R. No. L-8312, March 29, 1915
24

14

38. A lot of formal and public demands had been made to respondents
for them to forego the violative oil exploration project inside Your Petitioners
habitat in Taon Strait Protected Seascape. But they all fell on deaf ears.
Moreover, the requirement on the notice of Your Petitioners acceptance to
the benefits under the Convention is met by their use and choice of Taon
Strait as their natural habitat.
39. The legal standing of Your Petitioners representatives, Professors
Gloria Ramos and Liza Osorio of the University of Cebu College of Law is
however a non-issue. They definitely have stakes in the suit as they are in the
forefront of building awareness to protect the Taon Strait Protected Seascape
in order to conserve its splendor and marine wealth. Together with other
environmental advocates young and old, they formed the Save Taon Strait
Citizens Movement to advance the rights of Your Petitioners, the other marine
lives in the area and the fisherfolks who rely on the marine resources of the
strait for their subsistence.
40. The Honorable Supreme Court may please take judicial notice that it
is this citizens network to which Professors Ramos and Osorio belong that is
presently actively advancing the conservation and protection of the Taon
Strait. They are doing their advocacy by way of capacitating the stakeholders
and at the same time objecting to the unwarranted oil exploration thereat.
This same citizens network of theirs is also active in campaigning against the
on-going oil exploration project within the municipal waters of Sibonga and
Argao, Cebu by NorAsia Ltd. of Australia pursuant to Service Contract No. 56
which the latter signed with public respondent DOE.
41. Professors Ramos and Osorio are truly Your Petitioners rightful
stewards and of other Gods creations as all of us ought to be, especially where
the primary steward which is the Philippine State abjectly failed in its duty
pursuant to the public trust doctrine.
42. Under this doctrine, certain resources like air, sea, waters and the
forests have such a great importance to the people as a whole that it would be
wholly unjustified to make them a subject of private ownership. The said
resources being a gift of nature, they should be made freely available to
everyone irrespective of the status in life.27

27

Vide M.C. Mehta v. Kamal Nath & Others (1977) 1 SCC 388 (India)

15

43. The public trust doctrine enjoins upon the Government to protect
the resources of the enjoyment of the general public rather than to permit
their use for private ownership or commercial purposes. As held by the Highest
Court of India in M.C. Mehta v. Kamal Nath & Others 28, and to quote:
The State is the trustee of all natural resources which are by nature meant
for public use and enjoyment. Public at large is the beneficiary of the sea-shore,
running waters, airs, forests and ecologically fragile lands. The State as a trustee is
under a legal duty to protect the natural resources. These resources meant for
public use cannot be converted into private ownership. Thus the Public Trust
doctrine is a part of the law of the land.
xxxx-x
In the present case, large area of the bank of River Beas which is part of
protected forest has been given on a lease purely for commercial purposes to the
Motels. The area being ecologically fragile and full of scenic beauty should not have
been permitted to be converted into private ownership and for commercial gains.
Therefore, the Himachal Pradesh Government committed patent breach of public
trust by leasing the ecologically fragile land to the Motel management. The lease
transactions are in patent breach of the trust held by the State Government.
44. Being the more intelligent species (and this is according to man
himself, although the claim may not probably be accorded weight in evidence
for being self-serving), man occupies a unique position as a steward to all of
earths creations.
45. A stewards juridical bond with his ward is always fiduciary. He is
required to act ubberime fide since as a steward he is expected to do and act
only to the best interest of his ward. But man utterly failed in this selfappointment. As the late Pope John Paul II poignantly laments in his treatise
God Made Man the Steward of Creation:
Man is no longer the Creator's steward, but an autonomous despot, who is
finally beginning to understand that he must stop at the edge of the abyss. Another
welcome sign is the growing attention being paid to the quality of life and to
ecology, especially in more developed societies, where people's expectations are no
longer concentrated so much on problems of survival as on the search for an
overall improvement of living conditions" (Evangelium vitae, n. 27). At stake, then, is
not only a physical ecology that is concerned to safeguard the habitat of the
various living beings, but also a human ecology which makes the existence of
creatures more dignified, by protecting the fundamental good of life in all its
manifestations and by preparing for future generations an environment more in
conformity with the Creator's plan.
46. The time for the dolphins, whales, porpoises and other cetacean
species to be conferred upon with legal standing has surely come.

Roger

Langton29 in addressing this issue on legal standing of the other species

presents the following intriguing perspective, quote:

28

(1977) 1 SCC 388 (India)

Langton, R. 1993. On the moral status of humans. Aquatic Survival 2(3):4, quoted in The Rights of
Species and Ecosystems by E.P. Pister, Fisheries, April 1995 Vol. 20, No. 4
29

16

Humans, of course, have little difficulty granting rights to themselves and,

with typical anthropocentric arrogance, tell each other that only those species with
that come closest to having human characteristics are worthy of rights. I would like
to suggest a different approach to evaluating plant and animal rights: those species
that contribute most to the health of the earth and its biodiversity are most worthy of
rights. After all, if these creatures are not protected, the whole system is threatened.
Using this criterion, the case might be made that Homo sapiens would be very low
on the list of those eligible to be granted rights. It could even be argued that the
extinction of humans might be the one occurrence that would contribute most to the
earths viability I, for one, will champion the rights of fungus! On the other hand, if
humans were to emphasize that show respect for all life and develop the capacity to
learn values that result in a healthy environment, they just might be worthy of a few
rights also.
47. It is to this Honorable Courts credit that the trailblazing
jurisprudence in Oposa where it granted petitioning minors to sue for
themselves and on behalf of generations yet unborn the legal standing before
it30

had been prominently cited in a Bangladesh case of M. Farooque v.

Bangladesh31, where its Supreme Court ratiocinated that:

We have given reasons of our own why the appellant is a person aggrieved,
but we have to say specifically that we do not accept Dr. Farooques submission
that the association represents not only the present generation but also the
generation yet unborn. This claim is based on a case of Philippines Supreme Court,
Juan Antonio Oposa and others vs. Honourable Fulgencio S. Factoran and another
in which the twin concepts of inter-generational responsibility and intergenerational justice were agitated by the plaintiff minors represented by their
respective parents to prevent the misappropriation or impairment of Philippine rain
forest. The minors asserted that they represent their generation as well as
generation yet unborn. The minors locus standi was allowed because the right to
a balanced and heartful ecology was a fundamental right and several laws
declaring the policy of the State to conservation of the countrys forest not only for
the present generation by for the future generation as well were guaranteed. (The
South Asian Environmental Law Reporter, Vol.13, September, 1994, Colombo, Sri Lanka,
pp. 113-145).

48.

If this Honorable Supreme Court did vest legal standing unto the

minors in Oposa, there seems to be no plausible reason why it may not give the
same treatment to Your Petitioners.

Such a novel rule of law if laid down,

although it may seem radical to some straightjacket advocates in law, would be

contemporaneous to this era of thinking where environmental protection
occupies a very high level in the public soul. After all, the law as a means of
social control is not static but rather dynamic as to attune itself to the
changing needs of the times.32

30

Oposa v. Factoran, G.R. No. 101083, July 30, 1993

Civil appeal No 24 of 1995, 17 BLD (AD) 1997,Vol. XVII, pg 1 to 33; 1 BLC (AD) (1996), pg 189 219,
1996 (Bangladesh)
32
Vide Javellana v. Executive Secretary, G.R. No. L-36142, Mar. 31, 1973
31

17

49. The present problems arrayed against mankind are gargantuan,

gravely threatening his very existence on this planet. These maladies of
anthropogenic origin running amuck since the advent of industrial age cannot
be solved by the same formula that created them in the first place.
50. What is therefore demanded of us right now is to think outside of the
box and shift paradigm in order to get a clearer glimpse at the immensity of
the challenge ahead of us. To arrest the seemingly irreversible effects of global
warming, climate change and massive environmental degradation which are all
caused by mans mindless development, apathy to nature and low regard to
other co-existing species is without debate a very tall order. Yet science tells
us that it can be done but quickly!
51. We have accordingly remaining a period of barely five to ten years to
do and act sanely. After this, whatever course of action we will thereafter take
may only be palliative much less ineffectual as they might already be too late.
And when this apocalypse would happen, what then is the utility to our mancentered institutions, our professions, our rules of procedures, and our
material wealth where all of us will be preoccupied in fighting for our
individual survival on this planet?
52. Having said all these, whatever doubt about Your Petitioners having
locus standi must have been put to rest more so if the following dissertation
showing paramount and transcendental importance of the issues involved is
judiciously weighed.
II
Service Contract No. 46
And Other Similar Contracts
Entered Into By DOE Are
Inconsistent With Sec. 2,
Art. XII of the 1987 Philippine
Constitution
53. The 2nd Sentence of Sec. 2, Art. XII mandates: The exploration,
development, and utilization of natural resources shall be under the full
control and supervision of the State. The State may directly undertake such
activities, or it may enter into co-production, joint venture, or productionsharing agreements with Filipino citizens, or corporations or associations at
least sixty per centum of whose capital is owned by such citizens.
54. For large scale exploration, development, utilization of natural
resources as in this case and where the proponent is a foreign-owned entity
18

like that of private respondent JAPEX, the applicable rule is paragraph (5) in
the same Constitutional provision where it states: The President may enter
into agreements with foreign-owned corporations involving either technical or
financial assistance for large-scale exploration, development, and utilization
of minerals, petroleum, and other mineral oils according to the general terms
and conditions provided by law, based on real contributions to the economic
growth and general welfare of the country. In such agreements, the State
shall promote the development and use of local scientific and technical
resources.
55. In her comment, the Honorable Solicitor General cited the
annotation of Dean Joaquin G. Bernas, S.J. in his book The 1987 Constitution
of the Republic of the Philippines: A commentary, and arrived at the following
erroneous contention: The adoption of the above provision on service
contracts is recognition that local technical and financial resources in the area
of

large-scale

exploration,

development

and

utilization

of

minerals,

petroleum, and other mineral oils are inadequate.

56. By conveniently referring service contracts entered into by public
respondent DOE which are of the 1973 variety as valid substitutes to the
constitutional nomenclature of agreements x x x- x involving either
technical or financial assistance, the Honorable Solicitor General is unwittingly
advancing a dangerous thesis that generally the two terms are interchangeable.
But are they? The answer however is in both yes and no.
57. Revisiting La Bugal-Blaan Tribal Association, et al. v. Victor O.
Ramos, et al.,33 the following ratio by its ponente is instructive for the
judicious determination of the issue at hand:
From the foregoing, we are impelled to conclude that the phrase
agreements involving either technical or financial assistance, referred to in
paragraph 4, are in fact service contracts. But unlike those of the 1973 variety, the
new ones are between foreign corporations acting as contractors on the one hand;
and on the other, the government as principal or owner of the works. In the new
service contracts, the foreign contractors provide capital, technology and technical
know-how, and managerial expertise in the creation and operation of large-scale
mining/extractive enterprises; and the government, through its agencies (DENR,
MGB), actively exercises control and supervision over the entire operation.
Such service contracts may be entered into only with respect to minerals,
petroleum and other mineral oils. The grant thereof is subject to several
safeguards, among which are these requirements:

33

G.R. No. 127882. December 1, 2004

19

(1) The service contract shall be crafted in accordance with a general law
that will set standard or uniform terms, conditions and requirements, presumably to
attain certain uniformity in provisions and avoid the possible insertion of terms
disadvantageous to the country.
(2) The President shall be the signatory for the government because,
supposedly before an agreement is presented to the President for signature, it will
have been vetted several times over at different levels to ensure that it conforms to
law and can withstand public scrutiny.
(3) Within thirty days of the executed agreement, the President shall report
it to Congress to give that branch of government an opportunity to look over the
agreement and interpose timely objections, if any.
58. The service contracts being referred to in La Bugal which are
declared to be in conformity with the Constitution are those so-called new
ones which were or to be negotiated by the DENR but executed or to be
executed by the President pursuant to the Republic Act 7942 or the Philippine
Mining Act of 1995, the latter being the general law alluded to as having set
the standards or uniform terms and conditions to be followed by the Executive
Department in their course of issuing mining tenements.
59. By express declaration in La Bugal, those service contracts that were
of the 1973 variety and executed pursuant to Presidential Decree No. 87 (The
Oil Exploration and Development Act of 1972) such as Service Contract No. 46
and other similar contracts entered into by public respondent DOE are
expressly excluded. For reference in the succeeding disquisition, a machine
copy of Service Contract No. 46 is attached as Annex A for this Memorandum.
Your Petitioners were not able to procure a certified true copy of the
document as it is accordingly confidential in nature. This claim shall be
tackled elsewhere in the subsequent discussions.
60. Meanwhile, La Bugal is right all along in finding that the 1973 variety
of service contracts is anathema to the 1987 Constitution in view of the reasons
given in the succeeding.
61. Firstly, Section 6 of P.D. 87 on the nature of service contract
provides that in Service Contract, service and technology are furnished by
the service contractor for which it shall be entitled to the stipulated
service fee while financing is provided by the GOVERNMENT to which all
petroleum produced shall belong.
62. In fact, in the amendatory Presidential Decree 1857, the Government
categorically commits in Sec. 2 thereof as amendment to Sec. 8 of P.D. 87 to

20

reimburse the CONTRACTOR for all operating expenses not exceeding

seventy percent (70%) of the gross proceeds from production in any year,
Provided, that if in any year, the operating expenses exceed seventy
percent (70%) of gross proceeds from production, then the un-recovered
expenses shall be recovered from the operations of succeeding years.
63. The preceding scheme is not at all sanctioned under R.A. 7942 since
in the latter statute it is the foreign contractors who are thereby required to
provide for the capital, technology and technical know-how, and managerial
expertise in the creation and operation of large-scale mining/extractive
enterprises. Meanwhile, the role of the Government is only to actively exercise
control and supervision over the entire operation through the DENR/MGB over
these mining tenements.
64. Secondly, unlike in Section 36 of R.A. 7942 which makes it
mandatory in every financial or technical assistance agreement to be notified
to Congress by the President herself within thirty (30) days from execution and
approval, there is nowhere provided in P.D. 87 as well as stipulated in Service
Contract No. 46 for the President to report or notify Congress about every
contract entered into by her through public respondent DOE. The absence of
this very important safeguard condition makes the subject contract and P.D. 87
ran afoul with the Constitution.
65. Thirdly, unlike in the same section of R.A. 7942 where it is required
that all FTAAs, which were negotiated by DENR must be executed and approved
by the President, in the assailed Service Contract No. 46 it is the Secretary of
public respondent DOE who signed the document. This is again a clear violation
of the Constitution and inconsistent with the ruling in La Bugal where it is only
the President, and no one else who is authorized to enter into agreements with
foreign-owned corporation involving technical or financial assistance or service
contracts for large-scale exploration, development, and utilization of
petroleum and other mineral oils, among others.
66. Lastly, there are provisions in Service Contract No. 46 that are
patently infirmed since they are either ultra vires, grossly disadvantageous to
the Government or otherwise ambiguous. Among them are:
a. Section VII (7.2) (c) of the Service Contract where public respondent
DOE exempted private respondent JAPEX from complying with Sec. 7
of Republic Act 5455 on publication and posting requirements to

21

foreign entities wanting to do business in the Philippines. This

stipulated commitment is ultra vires since DOE is without any such
express power and authority granted it in its charter, the Republic
Act No. 7638 or by the mentioned law itself;
b. The parameters set in Sec. (10.1) of the subject contract relative to
determining the Market Price of petroleum produced in order to
compute the gross proceeds of the sale which are obviously
ambiguous. Specifically, the term transaction between independent
persons dealing at arms length in a free market is highly
susceptible to varied interpretations that may be detrimental or
disadvantageous to the Government;
c. The sweeping coverage under the provision on confidentiality found
in Section XXIII of the subject contract where all documents,
information, data and reports related to the Petroleum Operations
within the Contract Area are treated as confidential in nature is
clearly contrary to the States policy of full public disclosure of all
government transactions involving public interest as embodied in
Section 28, Art. II of the Constitution. This confidentiality clause in
the subject service contract is also inconsistent with the declared
state policy in requiring petroleum industry to be carried out in a
manner consistent with public interest34; and
d.

The assumption by public respondent DOE of the contractors

obligation to pay all Philippine Income Tax on the latters behalf
found in Section VII (7.3) of the subject contract is gross usurpation
of the power and authority of the Department of Finance through the
latters Bureau of Internal revenue.

67. With these intrinsic vices, it should become effortless on the part of
the Honorable Supreme Court to declare Service Contract No. 46 as being
invalid, ultra vires and unconstitutional. And ditto with all other similar
contracts entered into by public respondent DOE pursuant to Presidential
Decree No. 87 as amended.
III
Allowing Oil Exploration
Inside Taon Strait Is
Illegal In the Absence of
A Protected Area Management
Plan
34

Paraphrasing Sec. 3, R.A. 6173, otherwise known as the Oil Industry Commission Act

22

68. The area subject matter in this controversy is the Taon Strait, a
narrow but deep body of water separating the Islands of Cebu and Negros in
the Philippines. Because of its rich marine biodiversity and biologically unique
features capable of sustaining human life and development as well as marine
life, the area was duly declared a protected seascape on May 27, 1998 by
President Fidel V. Ramos pursuant to Presidential Proclamation 1234.
69. The action by the
former President is consistent
with Sec. 5 (e) of Republic
Act 7586, otherwise known as
the

National

Integrated

Protected Areas Systems Act

of 1992 which provides that:
Upon

receipt

of

the

recommendation

of

the

DENR, the President shall

issue

presidential

proclamation designating the

recommended

areas

as

protected areas and providing for measures for their protection until such
time when Congress shall have enacted a law finally declaring such
recommended areas as part of the integrated protected area systems.
70. A National Integrated Protected Areas Systems (NIPAS) is the
classification and administration of all designated protected areas to maintain
essential ecological processes and life-support systems, to preserve genetic
diversity, to ensure sustainable use of resources found therein, and to maintain
their natural conditions to the greatest extent possible.35
71. On the other hand, a protected area refers to identified portions of
land and water set aside by reason of their unique physical and biological
significance, managed to enhance biological diversity and protected against
destructive human exploitation.36
72. A protected area may be a strict nature reserve, a natural park, a
natural monument, a wildlife sanctuary, a protected landscape or seascape, a
35
36

Sec. 4 (a) Republic Act 7586 (The NIPAS Act)

Sec. 4 (b) Ibid

23

resource reserve, a natural biotic area or other category established by law,

conventions or international agreements which the Philippines is a signatory.37
73. A protected seascape (or landscape), meanwhile, are areas of
national significance which are characterized by the harmonious interaction of
man and land while providing opportunities for public enjoyment through
recreation and tourism within the normal lifestyle and economic activity of
these areas.38 Such is the innate features of Taon Strait as to be appropriately
declared a protected seascape.
74. As a protected seascape, the principal instrument which ought to
govern human intrusions or activities inside Taon Strait like seismic surveys
and oil explorations or exploitations is the statutorily required Protected Area
Management Plan and not an Environmental Compliance Certificate (ECC). This
is clear in Section (9) of the NIPAS Act where it is mandated:
Section 9. Management Plans. There shall be a general management
planning strategy to serve as guide in formulating individual plans for each
protected area. The management planning strategy shall, at the minimum, promote
the adoption and implementation of innovative management techniques including, if
necessary, the concept of zoning, buffer zone management for multiple use and
protection, habitat conservation and rehabilitation, diversity management,
community organizing, socioeconomic and scientific researches, site-specific policy
development, pest management, and fire control. The management planning
strategy shall also provide guidelines for the protection of indigenous cultural
communities, other tenured migrant communities and sites and for close
coordination between and among local agencies of the Government as well as
private sector.
Each component area of the System shall be planned and administered to
further protect and enhance the permanent preservation of its natural conditions. A
management manual shall be formulated and developed which must contain the
following: an individual management plan prepared by three (3) experts, basic
background information, field inventory of the resources within the area, an
assessment of assets and limitations, regional interrelationships, particular
objectives for managing the area, appropriate division of the area into management
zones, a review of the boundaries of the area, and a design of the management
programs.
75. In the NIPAS Law, an Environmental Compliance Certificate is
applicable or required only to be issued (though only after a thorough conduct
of an Environmental Impact Assessment) where the human activity or project is
outside the scope of the protected area, such as the buffer zone. This thesis
finds support in Section 12 of the NIPAS Act where it is provided:
Section 12. Environmental Impact Assessment. - Proposals for activities
WHICH ARE OUTSIDE THE SCOPE OF THE MANAGEMENT PLAN for protected
areas shall be subject to an environmental impact assessment as required by law
before they are adopted, and the results thereof shall be taken into consideration in
37
38

Sec. 3, Ibid
Sec. 4 (i), Ibid

24

the decision-making process. No actual implementation of such activities shall be

allowed without the required Environmental Compliance Certificate (ECC) under the
Philippine Environment Impact Assessment (EIA) system. In instances where such
activities are allowed to be undertaken, the proponent shall plan and carry them out
in such manner as will minimize any adverse effects and take preventive and
remedial action when appropriate. The proponent shall be liable for any damage due
to lack of caution or indiscretion. [Underscoring supplied]
76. Under the rules of statutory construction, the mention of one thing
implies the exclusion of another thing that is not mentioned. Thus, if a Law
enumerates the things upon which it is to operate, everything else must
necessarily, and by implication, be excluded from its operation and effect.39
77. As expressly provided in the NIPAS Law, only those activities outlined
in the management plan will be permitted inside a protected area. Those that
are not are thereby required to procure an ECC following a truly EIA process.
However as a sine qua non, there must be formulated a management plan for a
particular protected area. Otherwise, there is no way for the proper agency to
exactly determine which activity is part or outside of the scope of the
management plan.
78. To carry out its legislative purpose, Congress sets out under Section
(10) in the same law the creation of a Protected Areas and Wildlife Division
(PAWD)

which

is

attached

to

public

respondent

DENR

in

order

to

conscientiously administer and manage the systems, thus:

Section 10. Administration and Management of the System. The National
Integrated Protected Area System is hereby placed under the control and
administration of the DENR. For this purpose, there is hereby created a division in
the regional offices of the Department to be called the Protected Areas and Wildlife
Division in regions where protected areas have been established, which shall be
under the supervision of a Regional Technical Director x x x - The Service thus
established shall manage protected areas and promote the permanent preservation,
to the greatest extent possible of their natural conditions.
79. Proceeding from the foregoing thesis, the Environmental Compliance
Certificate (ECC) that was issued to private respondent JAPEX by the
Environment Management Bureau (EMB) should be considered as invalid and a
farce since the latter agency has no jurisdiction over the Taon Strait
Protected Seascape. Apropos, it is the Protected Areas and Wildlife Division of
public respondent DENR that exercises jurisdiction over the protected area
where the subject oil exploration is sited.

39

Crawford, Statutory Construction, pp. 334-335, quoted in Sario Mainias v. COMELEC, G.R. No.
146943, Oct. 4, 2002

25

80. This must be the only plausible ratio legis in establishing the NIPAS
Act, view that:
a. Congress created a special division in all regional offices known as the
Protected Areas and Wildlife Division (PAWD) under the supervision of a
specific Regional Technical Director.40 If the Law intended it to be part
of the Environmental Management Bureau (EMB), it would have
subsumed the PAWD under the EMB, instead of creating a particular
division within the DENR Regional Office;
b. The Environmental Impact Assessment (EIA) Law (Pres. Dec. 1586) is
implemented on the ground by the EMB while the NIPAS Law by the
Protected Areas and Wildlife Division (PAWD);
c. The process followed under the EIA Law is known as the Environmental
Impact System (EIS), the output of which is the ECC. Meanwhile the
process observed in the NIPAS Law is three-tiered, to wit:

1st The

Protected Area Management Planning Strategy (Sec. 9, RA 7586); 2nd a

Protected Area Management Plan for the individual protected area like
the Taon Strait (Sec. 10); and 3rd - a Protected Area Implementation
Manual;
d. The resulting document under the EIA System is the so-called
Environmental Compliance Certificate (ECC) or should be more
appropriately called the Environmental Document of Condition (EDC).
Whereas, by specific provision of Sec. 12 of the NIPAS Law, this ECC can
only be issued only in areas outside of the scope of the Protected Area
Management Plan (PAMP);
e. The conditions for a permit to conduct any human activity in protected
areas are not the same as the conditions applicable outside the
protected area.

Inside the protected area, the natural features and

aesthetic values of the area must be preserved and, if necessary,

restored. Thus, any human activity in the protected area must not only
also be in accord with the Plan, it must also be allowed only in areas
specifically zoned for such activities;
f. It is only in the zones outside of a protected area, as Sec. 12 specifically
states, such as in buffer zones where more human activity may be
allowed but subject to the Environmental Impact Assessment System.
The obvious reason for this requirement is to ensure that any human
activity in such zones outside the declared protected area does not do
harm to the latter;
40

Section 10, NIPAS

26

g. The Rules and Regulations for a protected area management Plan are all
contained in a Management Manual prepared by at least three (3)
experts41. On the other hand, the EIA/ECC application is prepared by
the Project Proponent;
h. The standards and conditions for the entry into, and use of, a protected
area are much more stringent than the standards for the use of a
property outside the protected area.

The reason is obvious:

The

Protected Area Management Plan focuses on the preservation and

protection of natural features and habitats of flora and fauna and not on
the use of the area for human intrusion and activity;
i. The object of the NIPAS Law is to secure, for the present and future
generations of Filipinos, the perpetual existence of all native plants and
animals of the Philippine Islands -- the crown jewel of the Earths
natural treasures.

This is done through the establishment of a

comprehensive system of integrated protected areas within the

classification of national parks. The NIPAS Law seeks to apply on-theground

the

development.

principles

of

biological

diversity

and

sustainable

It is meant to preserve the habitats of rare and

endangered species of plants and animals, identify bio-geographic zones

and related ecosystems -- terrestrial, wetland or marine. The law
mandates that these, and other places of natural beauty and wonder,
must be designated as protected areas;42 and
j. The IRR of the NIPAS Law, DAO No. 25, s. 1992, June 29, 1992 does not
even mention the Environmental Impact Assessment/ECC system. This
bolsters Your Petitioners contention that the ECC system is indeed not
applicable for permissible activities within a protected area. This is so
simply because in a protected area, there is a much more stringent set
of environmental standards that must be observed by anyone who enters
into, or uses it.
81. It is of judicial notice that when private respondent JAPEX was given
the go signal by public respondent DENR to proceed with its oil exploration
project pursuant to its constitutionally-infirmed Service Contract No. 46, the
latter agency had no Protected Area Management Plan in place for Taon Strait
Protected Seascape. And even up now, it also of judicial notice that public
respondent DENR still has no management plan formulated for the strait that is
in conformity with Section (9) of the NIPAS Act and its IRR.

41
42

Section 9, NIPAS
Paraphrasing Section 2, NIPAS Act

27

82. For it to be valid, the NIPAS law sets forth the following fundamental
components to be made part of a Protected Area Management Plan:
a. Boundaries - The identification of the metes and bounds of the
protected area, including the buffer zones;
b. Zoning - Which includes the setting aside the areas for strict
protection, habitat conservation and rehabilitation, recreation zones,
multiple use zones and buffer zones;
c. Carrying Capacity The assessment of the carrying capacity, the
natural assets and limitations (for human population, water supply,
construction limits, etc.;
d. Resource Inventory The inventory of all resources inside the
protected seascape including flora and fauna; and
e. Other scientific studies as required by Sections 9 and 10 of RA 7586.
83. It is not controverted that when private respondent JAPEX started its
oil exploration project inside Taon Strait sometime in January of 2008, it was
armed only with an Environmental Compliance Certificate procured through a
highly irregular exemption from EIA process granted by public respondent DENR
through its bureau, the EMB. In lieu of the tedious EIA procedure, private
respondent was simply required by EMB to undergo the so-called IEE Checklist
process43.
84. It is likewise of judicial notice that when private respondent JAPEX
commenced its oil exploration project, public respondent DENR had no
Protected Area Management Plan formulated for the Taon Strait Protected
Seascape which in accord with Sec. (9) of the NIPAS Act.
85. By such omission and impropriety, the oil exploration project inside
Your Petitioners habitat pursuant to Service Contract No. 46 must perforce be
struck down for having been undertaken in contravention to law.
IV
The ECC issued to JAPEX
Resultant from IEE
Transgresses the EIA Law

86. But assuming for arguments sake that an Environmental Compliance

Certificate (ECC) suffices for projects inside a protected seascape, the one
43

Initial Environmental Examination is applied in lieu of the EIA process for, among others, NonEnvironmentally Critical Projects within an Environmentally Critical Area.

28

issued however to private respondent JAPEX is another matter. The ECC which
was handed over to JAPEX in a silver platter was done in gross violation of the
EIA Law44 and fruit of an ultra vires act.
87. Its ECC must therefore be treated as an invalid document since it
was procured through an abbreviated process called Initial Environmental
Examination (IEE) Checklist, which procedure is short of what is required by the
statute for projects considered as environmentally critical and sited at
environmentally critical areas.
88. According to public respondent DENRs implementing rules and
regulations to the EIA Law, the Philippine EIA Process has six (6) sequential
stages: (1) Screening, (2) Scoping, (3) EIA Study and Report Preparation, (4) EIA
Review and Evaluation, (5) Decision Making, and (6.a) Post-ECC Monitoring,
Validation and (6.b) Evaluation/Audit stage. Stages 1, 2, 3 and 6a are all
proponent-driven while Stages 4, 5 and 6b are DENR-EMB driven stages.45
89. For purposes of a full-blown EIA Process, each of the preceding stage
has been described in the same IRR as follows:
a. Screening determines if a project is covered or not covered by the
PEISS. If a project is covered, screening further determines what
document type the project should prepare to secure the needed
approval, and what the rest of the requirements are in terms of EMB
office of application, endorsing and decision authorities, duration of
processing;
b. Scoping is a proponent-driven multi-sectoral formal process of
determining the focused Terms of Reference of the EIA Study.
Scoping identifies the most significant issues/impacts of a proposed
project, and then, delimits the extent of baseline information to
those necessary to evaluate and mitigate the impacts. The need for
and scope of an Environmental Risk Assessment (ERA) is also done
during the scoping session. Scoping is done with the local community
through Public Scoping and with a third party EIA Review Committee
(EIARC) through Technical Scoping, both with the participation of the
DENR-EMB. The process results in a signed Formal Scoping Checklist
by the review team, with final approval by the EMB Chief;
c. The EIA Study involves a description of the proposed project and its
alternatives, characterization of the project environment, impact
44
45

Presidential Decree 1586

Sec. 12, DAO 30-2003

29

identification and prediction, evaluation of impact significance,

impact mitigation, formulation of Environmental Management and
Monitoring Plan, with corresponding cost estimates and institutional
support commitment. The study results are presented in an EIA
Report for which an outline is prescribed by EMB for every major
document type;
d. Review of EIA Reports normally entails an EMB procedural screening
for compliance to minimum requirements specified during Scoping,
followed by a substantive review of either composed third party
experts commissioned by EMB as the EIA Review Committee for
PEIS/EIS-based applications, or DENR/EMB internal specialists, the
Technical Committee, for IEE-based applications. EMB evaluates the
EIARC recommendations and the publics inputs during public
consultations/hearings in the process of recommending a decision on
the application. The EIARC Chair signs EIARC recommendations
including issues outside the mandate of the EMB. The entire EIA
review and evaluation process is summarized in the Review Process
Report (RPR) of the EMB, which includes a draft decision document;
e. Decision Making involves evaluation of EIA recommendations and the
draft decision document, resulting to the issuance of an ECC, CNC or
Denial Letter. When approved, a covered project is issued its
certificate of Environmental Compliance Commitment (ECC) while an
application of a non-covered project is issued a Certificate of NonCoverage (CNC). Endorsing and deciding authorities are designated by
AO 42, and further detailed in this Manual for every report type.
Moreover,

the

Proponent

signs

sworn

statement

of

full

responsibility on implementation of its commitments prior to the

release of the ECC. The ECC is then transmitted to concerned LGUs
and other GAs for integration into their decision making process; and
f. Post-ECC Monitoring, Validation and Evaluation/Audit stage assesses
performance of the Proponent against the ECC and its commitments
in the Environmental Management and Monitoring Plans to ensure
actual impacts of the project are adequately prevented or mitigated.
90. In stark contrast, the simplified process observed in an IEE
application as described in the IRR are as follows:
a. Informal Scoping (option of the Proponent) where the Proponent may
opt to request EMB CO/RO to scope the IEER. In the scoping meeting,

30

the Proponent and EMB jointly fill out the Scoping Checklist. The
accomplished form may be signed by both parties to serve as the
official TOR of the IEER;
b. EIA Study and Report Preparation where Proponent undertakes the
IEE Study. DENR-EMB personnel may clarify procedural and technical
matters on the EIA process but is not allowed to take part in the EIA
study or in the preparation of the report. X x x Project Grouping
Matrix highlights project types with available IEE Checklists under
Groups I and II. Checklists must be used if these are provided by EMB.
The IEE Report Outline is x x x provide(d) (in) templates for the
Impacts Management Plan and Environmental Monitoring Plan. The
Proponent is reminded to submit the filled-out (form) with the
IEER/IEEC as basis of EMB for prioritization in compliance monitoring
and evaluation x x x (and) Pro-forma Sworn Statements of
Accountability of Proponent and Preparers for attachment in the
IEER/IEEC;
c. EIA Report Review and Evaluation which includes procedural
screening, setting up the review fund, and submission of procedurally
acceptable application documents;
d. Substantive review of the application which includes inviting EMB
Reviewers and Distribution of EIA Reports, optional site visitation,
etc;
e. Endorsement of Recommendation;
f. Issuance of Decision Document; and
g. Transmittal of ECC.
The immediately preceding was the process applied to JAPEX regarding
its oil exploration project at Your Petitioners habitat in Tanon Strait Protected
Seascape.
91. As gleaned from the above comparative presentation, the IEE process
may be appropriately monickered as an office-table made process. Due to its
superficial character, the IEE Checklist method cannot validly apply to projects
involving oil exploration inside a critical habitat like the one at bar.
92. Your Petitioners note that Sec. (4) of Presidential Decree 1586 which
establishes the Environmental Impact Statement (EIS) System expressly
prohibits any person, partnership or corporation to undertake any project
inside an environmentally critical area without first securing an Environmental
Compliance Certificate (ECC).

31

93. Environmentally Critical Areas (ECAs) include, inter alia, all areas
declared by law as national parks, watershed reserves, wildlife preserves, and
sanctuaries and areas set aside as aesthetic potential tourist spots; and areas
which constitute the habitat of any endangered or threatened species of
Philippine wildlife (flora and fauna) like Tanon Strait.46 On the other hand,
Environmentally Critical Projects (ECPs) include, among others, resourceextractive industries like major mining and quarrying activities47; and by
implication, oil exploration like the one undertaken by private respondent
JAPEX.
94. In Section 2 of Presidential Decree 1586, it is declared that: There
is hereby established an Environmental Impact Statement (EIS) System founded
and based on the environmental impact statement required, under Section 4 of
Presidential Decree No. 1151, of all agencies and instrumentalities of the
national government, including government-owned or controlled corporations,
as well as private corporations, firms and entities, for every proposed project
and undertaking which significantly affect the quality of the environment.
95. The statute defines an Environmental Compliance Certificate (ECC)
as a document issued by the government agency concerned certifying that the
project

under

consideration

will

not

bring

about

an

unacceptable

environmental impact and that the proponent has complied with the
requirements of the environmental impact statement system.48 Under the law,
an ECC may be issued after its project proponent has truly undergone the EIA
process. Hence, an IEE Checklist procedure should not result into the issuance
of an ECC as the process is short of what is required of the statute.
96. An Environment Impact Assessment (EIA), on one hand, 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 communitys welfare.49
97. However, there is a better definition which can be found in the
European Union website where it describes an Environmental Impact
46

DAO 03-30
Ibid
48
Sec. 3[m], Republic Act 7945 or the Philippine Mining Act of 1995
49
DAO 03-30
47

32

Assessment

as

procedure

that

ensures

that

the

environmental

implications of decisions are taken into account before the decisions are
made. The process involves an analysis of the likely effects on the
environment, recording those effects in a report, undertaking a public
consultation exercise on the report, taking into account the comments and
the report when making the final decision and informing the public about
that decision afterwards.50
98. The EIA procedure ensures that environmental consequences of
projects are identified and assessed before authorization is given. The public
can give its opinion and all results are taken into account in the authorization
procedure of the project. The public is informed of the decision afterwards.51
99. Based on the immediately foregoing definition, public participation
is always an indispensable element in an EIA process. Anything less such as the
office-table process and report in an IEE Checklist procedure as observed by
public respondent DENR cannot qualify as one since it derogates the public
character of the EIA.
100. As a basic principle, EIA is used to enhance planning and guide
decision-making. EIA is primarily presented in the context of a requirement to
integrate environmental concerns in the planning process of projects at the
feasibility stage. Through the EIA Process, adverse environmental impacts of
proposed actions are considerably reduced through a reiterative review process
of project siting, design and other alternatives, and the subsequent
formulation of environmental management and monitoring plans.52
101. Pursuant to Sec. 4 of PD 1586 (1978), the EIA Process covers
projects which have been originally declared as Environmentally Critical
Projects (ECPs) or projects in Environmentally Critical Areas (ECAs) presumed
to have significant impacts on the quality of the environment. On the other
hand, Sec. (5) of PD 1586 provides for noncovered projects, which may be
required environmental safeguards if deemed necessary by DENR.53
102. Meanwhile, Section 4 of the Philippine Environment Policy (P.D.
1151) outlines the EIS in the following manner:

50

http://ec.europa.eu/environment/eia/
http://ec.europa.eu/environment/eia/eia-legalcontext.htm#legalcontext
52
Ibid
53
Ibid
51

33

Section 4. Environmental Impact Statement. Pursuant to the above

enunciated policies and goals, all agencies and instrumentalities of the national
government, including government-owned or controlled corporations, as well as
private corporations, firms and entities shall prepare, file and include in every
action, project or undertaking which significantly affects the quality of the
environment a detailed statement on:
a. the environmental impact of the proposed action, project or
undertaking;
b. any adverse environmental effect which cannot be avoided should
the proposal be implemented;
c. alternative to the proposed action;
d. a determination that the short-term uses of the resources of the
environment are consistent with the maintenance and enhancement
of the long-term productivity of the same; and
e. whenever a proposal involves the use of depletable or nonrenewable
resources, a finding must be made that such use and commitment
are warranted.
103. The same provision in P.D. 1125 mandates that before an
environmental impact statement is issued by a lead agency (in this instance,
the Environmental Management Bureau) all agencies having jurisdiction over,
or special expertise on the subject matter involved shall comment on the draft
environmental impact statement made by the lead agency within thirty (30)
days from receipt of the same.
104. But considering that the JAPEX oil exploration project bypassed the
EIA process, it obviously did not comply with preceding mandated commentary
from other agencies having jurisdiction over the Tanon Strait like the Local
Government Units (LGUs) surrounding it or those with expertise on the subject
matter involved, like the Protected Areas and Wildlife Division (PAWD) of the
public respondent DENR and the Bureau of Fisheries and Aquatic Resources
(BFAR) of the Department of Agriculture.
105. The oil exploration project subject to herein suit falls under
paragraph (e) in the above-quoted Section 4 of P.D. 1125 since it involves the
use of depletable or non-renewable petroleum resources. Being so, private
respondent JAPEX should have been required to make a finding that its use and
commitment in the project are warranted.
106. The immediately preceding determination is in addendum to the
required detailed statement on the environmental impact of the project, the
unavoidable adverse environmental effects, the alternative action, as well as
the determination that the short-term uses of the resources of the environment
are sustainable. Obviously, such however was not done for the assailed project

34

because public respondent DENR unduly allowed the proponent to shortcut or

short-circuit the EIA process.
107. To exempt an oil exploration project (which is deemed an
Environmentally Critical Project) alone from the EIA process would have been
already highly irregular. But to exempt private respondents oil exploration
project even though it is sited inside an Environmentally Critical Area that is
the Taon Strait Protected Seascape is mind boggling. Such an act from public
respondent DENR is not only legally untenable, it is likewise grave abuse of
discretion in its highest order bordering from graft.
Oil Exploration is expressly
Banned inside Critical Habitats
Like Tanon Strait
108. Section 27 of Republic Act No. 9147, otherwise known as the
Wildlife Resources Conservation and Protection Act of 2001 makes it illegal for
any person to undertake mineral exploration and/or extraction inside a known
critical habitat. The law states that:
SEC. 27. Illegal Acts. - Unless otherwise allowed in accordance with this
Act, it shall be unlawful for any person to willfully and knowingly exploit wildlife
resources and their habitats, or undertake the following acts:
c. effecting any of the following acts in critical habitat(s):
(iii)

mineral exploration and/or extraction.

109. When public respondent DOE and private respondent JAPEX inked
their constitutionally-infirmed Service Contract No. 46, they knew that the
area subject in their contract is a protected seascape and a critical habitat to
Your Petitioners. But they proceeded anyway although they were well aware of
the many legal obstacles ranged against the project.
110. And when private respondent JAPEX submitted its concept paper or
feasibility study or application for issuance of an ECC or whatever scrap of
paper it had to public respondent DENR, the latter more than knew that the
area involved in the oil exploration project is a protected area and a wellknown critical habitat to Your Petitioners. After all, it is supposed to be the
agency who recommended to then President Ramos to declare Your Petitioners
habitat in Taon Strait as a protected seascape.

35

111. Moreover, public respondent DENR must have fully known that
mineral exploration within Taon Strait is prohibited since it is also the lead
agency tasked to implement Republic Act 9147.
112. Yet, despite all these readily available information on hand, public
respondent DENR coyly or rather unabashedly allowed the illegal oil exploration
project to proceed - never mind if Your Petitioners will be killed, harmed or
displaced by it. But what is worst is that it unduly exempted private
respondent JAPEX from the tedious EIA process although the project is clearly
covered under the law and even its rules.
113. In a series of fora preceding the filing of this case, representatives
from public respondent DENR justified their position by conveniently taking
refuge under Sec. 14 of the NIPAS Act which according to them expressly
sanctions oil exploration inside Taon Strait, and to quote:
Sec. 14. Survey for Energy Resources. Consistent with the policies declared
in Section 2 hereof, protected areas, except strict nature reserves and natural parks,
may be subjected to exploration only for the purpose of gathering information on
energy resources and only if such activity is carried out with the least damage to
surrounding areas. Surveys shall be conducted only in accordance with a program
approved by the DENR, and the result of such surveys shall be made available to the
public and submitted to the President for recommendation to Congress. Any
exploitation and utilization of energy resources found within NIPAS areas shall be
allowed only through a law passed by Congress.
114. The preceding posture of public respondent DENR may seem fine at
its face value. Yet if one is to study carefully the above provision of the law or
makes reference to other related laws on the subject matter, it would readily
show that such contention is erroneous.
115. Consider this Your Honors: the NIPAS Act was passed on June 1,
1991 while the Republic Act 9147 which is a penal law was passed on July 30,
2001 or more than a decade later. The latter law must be construed to be the
latest legislative policy over critical habitats so that Sec. 27 of R.A. 9147
should be viewed as an amendment to Section 14 of Republic Act 7586.
116. Nevertheless, assuming arguendo that oil exploration is indeed
allowed by law inside a well-known critical habitat for marine mammals like
Taon Strait, such exploration must still comply with the following stringent
requirements set in NIPAS Law to the effect that:
a. The exploration must only for the purposes of gathering information
on energy resources;

36

b. It must be carried out with the least damage to the surrounding

areas;
c. It must be conducted only in accordance with a program approved by
the DENR; and
d. Such survey shall be made available to the public and submitted to
the President for approval of Congress.
117. Evidence presented to this proceeding however would tell that the
subject oil exploration project by private respondent JAPEX inside Taon Strait
dismally failed in the preceding tests because:
a. The project is not for exploration only intended for gathering
information on energy resources. Albeit it is primarily for oil
exploitation or extraction as stipulated in Service Contract No. 46;
b. The oil exploration undertaken by private respondent is obviously
preparatory only to the real intention of the parties to the contract
which is to exploit or develop oil wells inside Taon Strait;
c. The project was not approved by public respondent DENR but by
public respondent DOE, the latter being one of the contracting party
to the service contract. The only role of the DENR to the project is to
issue an exemption from the EIA to JAPEX;
d. The project was not carried out with least damage to the
environment since it was taken out from the mantle of the EIA
process; and
e. It may be legally impossible to make the survey results public owing
to the confidentiality clause in the service contract as already
discussed in the preliminary.
EIA is required where there
Are probable or known impacts
To the environment from the
Proposed project
118. In tediously explaining the EIA in relation to the project cycle54, the
IRR of the NIPAS Law states that:
The EIA study shall determine the environmental impacts of the project and
shall provide recommendations/guidance at various stages of the project cycle. It is
during the Feasibility Study (FS) stage when a Proponent defines its range of
actions and consider project alternatives, thus, it is the most ideal stage in the
project cycle wherein the EIA study will have most added value. EIA documents are
ideally prepared when prospective proposals are more concrete than mere concept
and are preferably available before the project has reached a stage of investment or
commitment towards implementation. Proponents are in fact directed under
54

Sec. 4, DAO 30-2003

37

Malacanang Administrative Order No. 42 to conduct simultaneously the

environmental impact study and the project planning or Feasibility Study (FS).
119. In the above-quoted rule, it can be readily deduced that a project
must be required to undergo the EIA if such has known actual or probable
environmental impacts.
120. Again, it is of judicial notice that any mineral extraction or oil
exploration project always carry with it adverse impacts or effects to the
surrounding environment. An oil exploration project should not be equated
with a beauty parlor or a sari-sari store project since in the latter there is none
yet published any scientific data showing their adverse impact to their
neighborhood. This however cannot be said in respect to an oil exploration
project since lots and lots of scientific and legal treatises have already been
made public proving fatal effects to marine mammals from its emitted
acoustics.
121. The foregoing thesis is even sustained by the rules itself of public
respondent DENR, the DAO 30-2003 where it is declared in Section 7 (a) thereof
that:
(7) Covered Projects of the Philippine EIS System. Pursuant to Sec. 4 of PD
1586 (1978), the EIA Process covers projects which have been originally declared as
Environmentally Critical Projects (ECPs) or projects in Environmentally Critical
Areas (ECAs) presumed to have significant impacts on the quality of the
environment. On the other hand, Sec. 5 of PD 1586 provides for noncovered
projects, which may be required environmental safeguards if deemed necessary by
DENR.

122. From public respondent DENRs own mouth is stated that if a

project is an Environmentally Critical Project or otherwise located in an
Environmental Critical Area, it is always presumed to have significant impacts
on the quality of the environment.
123. As already explained, mineral extraction by itself is already deemed
an environmentally critical project. Such that if it is done inside a protected
area with critical habitats like in Taon Strait, the presumption that it will
incur adverse impacts to the environment would become conclusive.
124. Pray tell, what justification did public respondent DENR have when
it exempted private respondent JAPEX from the coverage of the tedious EIA
process? There is none really because in DAO 30-2003 it sets the rule that
should there be uncertainty as to whether a project or an area is

38

environmentally critical the presumption is that it is environmentally critical.

In such instance, the burden of proof is with the proponent that it is not.
Thus55:
d) ECA Determination: Any one (1) confirmed ECA among the 12 categories
renders a project location an ECA. However, before a project location is considered
in a Non-ECA (NECA), all of the relevant ECA categories (e.g. ECA category of
coral reefs and mangrove areas are not relevant for a project proposed to be
located up in the mountains) have to be confirmed by Proponent through the
mandated agencies as not an ECA based on the technical descriptions (presented
in Annex 2-1a as part of ECA Screening Procedure). EMB will decide on the
relevance of the ECA categories to the project location. If the agency with
jurisdiction on the ECA cannot confirm the ECA status of the project, the
uncertain status renders the project location as ECA, per EMB convention. The
burden of proof lies with the Proponent in proving that the project is located in a
NECA. DENR can only certify ECAs within its own mandate, as follows: water bodies
to be certified by DENR-EMB; NIPAS areas, wildlife habitats and mangrove areas, by
PAWB/CENRO/PENRO; geologic hazard areas and areas of critical slope, by DENRMGB.
125. In the case at bar, there must not be any uncertainty in ECA
determination. The project itself is one of the confirmed ECPs proposed to be
undertaken inside a critical habitat within a proclaimed NIPAS area, hence also
a confirmed ECA.
126. In fine, when public respondent DENR exempted the subject oil
exploration project from the EIA process, it did not only utterly disregard its
own rules, it did likewise commit the gravest abuse of discretion amounting to
lack or excess of its jurisdiction.
V
General Principles of
International Law Are
Part of Philippine Law
127. The Philippines renounces war as an instrument of national policy,
adopts the generally accepted principles of international law as part of the law
of the land, and adheres to the policy of peace, equality, justice, freedom,
cooperation and amity with all nations. The preceding underscored provision in
Section. 2, Article II of the Philippine Constitution is known to everybody as the
Incorporation Clause.
128. In the Philippines, we follow the doctrine of incorporation where
generally accepted principles of international law are deemed part of the

55

Sec. 7 (d) DAO 30-2003

39

Philippine legal system. Thus, in the leading case of Kuroda vs. Jalandoni56,
this Honorable Supreme Court declared that:
It cannot be denied that the rules and regulations of the Hague and Geneva
conventions from part of and are wholly based on the generally accepted principles
of international law. In fact, these rules and principles were accepted by the two
belligerent nations, the United States and Japan, who were signatories to the two
Conventions.
Such rules and principles, therefore, form part of the law of our nation even if
the Philippines was not a signatory to the conventions embodying them, for our
Constitution has been deliberately general and extensive in its scope and is not
confined to the recognition of rules and principles of international law as contained
in treaties to which our government may have been or shall be a signatory.
129. The above jurisprudence was reiterated in Santos III vs. Northwest
Orient Airlines57, where it was held that: Convention which is a Treaty
commitment voluntarily assumed by the Philippine government has the force
and effect of law in this country.
Precautionary Principle is
Derogated by the reckless
Oil exploration inside a
Critical habitat in Tanon
Strait Protected Seascape
130. The United Nations Conference on Environment and Development
which was held in Rio de Janeiro, Brazil in June 1992 marked an important
milestone in the development of the law on environmental conservation.
Among the important documents adopted at Rio was the Rio Declaration of
Environment and Development. This is a set of 27 principles which States are
urged to adopt in order to integrate environmental conservation in their
development programmes. It is not a legally binding document. However, it
sets standards for States to follow and falls under the category of soft law.58
131. Principle 15 of the Rio Declaration deals with the concept of
precaution. It states that:
In order to protect the environment, the precautionary approach shall be
widely applied by States according to their capabilities. Where there are threats of
serious or irreversible damage, lack of full scientific certainty shall not be used as a
reason for postponing cost effective measures to prevent environmental
degradation.

56

G.R. No. L-2662, Mar. 28, 1949

210 SCRA 261 [1992]
58
Page xxxv, Compendium on Judicial Decisions Related to Environment, Vol. I, published by the United
Nations Environmental Programme (UNEP), December 1998
57

40

132. Along with the Polluter Pays Principle,59 the Precautionary Principle
quickly became one of the most frequently cited of the Rio principles. Among
the notable jurisprudence dealing with the Precautionary Principle in
Environmental Law are those presented in the succeeding paragraphs.
133. In the case of Shehla Zia v. WAPDA60 which was triggered by a
letter sent to the Supreme Court by some citizens who were apprehensive of
the construction of a grid station in their residential area, it was held that:
The concern for protecting environment was first internationally recognised
when the declaration of United Nations Conference on the Human Environment was
adopted at the Stockholm on 16-6-1972. Thereafter it had taken two decades to
create awareness and consensus among the countries when in 1992 Rio Declaration
was adopted. Pakistan is a signatory to this declaration and according to Dr. Parvez
Hasan although it has not been ratified or enacted, the principle so adopted has its
own sanctity and it should be implemented, if not in letter, at least in spirit. An
international agreement between the nations if signed by any country is always
subject to ratification, but it can be enforced as a law only when legislation is made
by the country through its legislature. Without framing a law in terms of the
international agreement the covenants of such agreement cannot be implemented
as a law nor do they bind down any party. This is the legal position of such
documents, but the fact remains that they have a persuasive value and command
respect. The Rio Declaration is the product of hectic discussion among the leaders
of the nations of the world and it was after negotiations between the developed and
the developing countries that an almost consensus declaration had been sorted out.
Environment is an international problem having to frontiers creating trans-boundary
effects. In this field every nation has to cooperate and contribute and for this reason
the Rio Declaration would serve as a great binding force and to create discipline
among the nations while dealing with environmental problems. Coming back to the
present subject, it would not be out of place to mention that Principle No. 15
envisages rule of precaution and prudence. According to it if there are threats of
serious damage, effective measures should be taken to control it and it should not
be postponed merely on the ground that scientific research and studies are
uncertain and not conclusive. It enshrines the principle that prevention is better
than cure. It is a cautious approach to avert a catastrophe at the earliest stage.
Pakistan is a developing country. It cannot afford the researches and studies made
in developed countries on scientific problems particularly the subject at hand.
However, the researches and their conclusions with reference to specific cases are
available, the information and knowledge is at hand and we should take benefit out
of it. In this background if we consider the problem faced by us in this case, it
seems reasonable to take preventive and precautionary measures straightaway
instead of maintaining status quo because there is no conclusive finding on the
effect of electromagnetic fields on human life. One should not wait for conclusive
finding as it may take ages to find it out and, therefore, measures should be taken to
avert any possible danger and for that reason one should not go to scrap the entire
scheme but could make such adjustments, alterations or additions which may
ensure safety and security or at least minimize the possible hazards.
134. In the case of Leatch v. National Parks & Wildlife Service and
Shoalhaven City Council61 where the objector, May Leatch appealed before
the Supreme Court the lower Courts decision granting license to Shoalhaven
59

Principle 16, Rio Declaration

P L D 1994 Supreme Court 693 (Pakistan)
61
(1993) 81 LGERA 270 (Australia)
60

41

City to take or kill endangered fauna in the course of constructing a link road
and arguing that the precautionary principle should be applied, the Supreme
Court of Australia ruled that:
While there has been express references to what is called the
precautionary principle since the 1970s, international endorsement has occurred
only in recent years. Indeed, the principle has been referred to in almost every
recent international environmental agreement, including the 1992 Rio Declaration on
Environment and Development [Principle 15], the 1992 UN Framework Convention
on Climate Change [art 3(3)], the June 1990 London Amendments to the Montreal
Protocol on Substances that Deplete the Ozone Layer [preamble, par 6] and the 1992
Convention on Biological Diversity. This latter convention, which Australia has
ratified, is of relevance to the present case. It formulates the precautionary principle
in the following terms: ... where there is a threat of significant reduction or loss of
biological diversity, lack of full scientific certainty should not be used as a reason
for postponing measures to avoid or minimise such a threat.
xxxx
The question for the Court is therefore, should the licence be granted, and if so
upon what conditions? In this regard I would suggest that a licence should not in
most circumstances be general in its coverage of endangered species but should
specify the species which it permits to be taken. I think this view is shared by the
National Parks and Wildlife Service, according to the submission of Mr. Preston. It
makes good sense not to grant a licence in relation to all endangered fauna when
some species may be later located which were not the subject of a fauna impact
statement or added to the schedule by the scientific committee at a date after the
issue of a general licence.
xxxx
It is the context of a thorough examination of alternatives, especially ones which
have minimal environmental impact, that one must balance the issue of a licence to
take or kill endangered fauna. The need for a link road is accepted but I question,
when all pertinent factors are weighed in the balance, whether the need is for this
particular road. The issue of the best route, taking account of all relevant
circumstances, including environmental factors, needs to be carefully assessed. I
am not satisfied that a licence to take or kill the Yellow-bellied Glider, or any of the
other species discussed in the fauna impact statement, is justified. The applicant for
such a licence needs to satisfy the Court, on the civil standard on the balance of
probabilities, that it is appropriate in all the relevant circumstances to grant the
licence. I am not convinced of the strength and validity of the economic arguments
presented to the Court by the Council, nor do I take such a predictable view of
human behaviour as Mr. Nairn.
135. The aforequoted decisions from other jurisdictions were handed
down in the early 1990s, just a few years after the principle was embodied in
the Rio Declaration, a multilateral environment agreement which the
Philippines is a signatory. But judicial notice should be taken that in recent
years the precautionary principle has already been widely applied as a norm of
conduct among many states in pursuance to their respective environmental
policies. This event has therefore elevated the precautionary principle from a
soft law into a binding customary international law.

42

136. The precautionary principle should not be viewed in the context of

a scientific jargon because it is not. It is simply the application of both
common sense and environmental ethics which are supposed to be innate to
man. The Wingspread Statement in Racine, Wisconsin spelled out the
Precautionary Principle in this manner:
"When an activity raises threats of harm to the environment or human
health, precautionary measures should be taken even if some cause and effect
relationships are not fully established scientifically."

137. Simply put, precautionary principle means that in undertaking any

activity one must be careful so as not to harm the environment. A project
proponent must not wait for scientific certainty on the effects of his activity
because doing so may be too late and harm may have already been committed
before such scientific proof is released.
138. Albeit, the author is required to take precaution even in the face of
scientific uncertainty of his project by exploring all available alternatives or
courses of action in order to prevent or mitigate any damage that the project
may cause to the environment.
139. True that in the Philippines we have so many environmental laws
that can be considered as precautionary actions put in place by the Philippine
Government to ensure protection of our environment. We have the EIA law, the
NIPAS Act, the Clean Air and Clean Water Acts, the Solid Waste Management
Act, ad infinitum. You name your environmental law and (presto!) we have it
here in the Philippines.
140. But the problem is that these laws just remain where they are: in
the statute book accumulating dusts. As wryly observed by this Honorable
Supreme Court in a very recent case, and to quote:62
This case turns on government agencies and their officers who, by the
nature of their respective offices or by direct statutory command, are tasked to
protect and preserve, at the first instance, our internal waters, rivers, shores, and
seas polluted by human activities. To most of these agencies and their official
complement, the pollution menace does not seem to carry the high national priority
it deserves, if their track records are to be the norm. Their cavalier attitude towards
solving, if not mitigating, the environmental pollution problem, is a sad commentary
on bureaucratic efficiency and commitment.
141. Assuming for arguments sake that respondents as the collective
conspirators of the project did not have, at the time it was concocted full
62

MMDA, et al. v. Concerned Residents of Cavite, et al., supra

43

scientific proof of any adverse effect their oil drilling project may do to marine
mammals as well as to other fauna and flora inside Taon Strait, this lack of
scientific certainty is never a valid excuse to short-cut the EIA process as to
allow private respondent JAPEX to proceed despite overwhelming objections
coming from all stakeholders, including some 170 Philippine Marine Scientists
who signed a manifesto opposing the project on October 26, 2007 during their
gathering held at Punta Villa Resort, Iloilo City.
.

142. These valid objections against the propriety of the oil exploration
project inside Your Petitioners habitat coming at that from experts on the
subject mammalia would have been good reason enough for public respondents
to demand from private respondent JAPEX to lay down all its card about its
preventive or mitigating measures to every eventual, potential, probable or
actual adverse effect that its project may have to the protected area,
especially to Your Petitioners.
143. This could have been judiciously arrived at if only public
respondent DENR conducted a truly EIA procedure about the project with
encouraged public participation. But sad to say, this was not done in this
extant since the proponent was unwarrantedly excused from the drudgery of
the process.
144. Hence, because of the omissions of its state organs (public
respondent DENR especially occupying the most dishonorable mention) the
Philippine Government thereby committed breach in the above-mentioned
generally-accepted Precautionary Principle in International Law.
The Oil Exploration Project also
Derogates the Principles embodied
In the UN Charter for Nature

145.

The UN World Charter for Nature passed during the United

Nations 48th plenary meeting on 28 October 1982 adopted, inter alia, the
following principles of conservation by which all human conduct affecting
nature is to be guided and judged, that:
a. Nature shall be respected and its essential processes shall not be
impaired;63
b. The genetic viability on the earth shall not be compromised; the
population levels of all life forms, wild and domesticated, must be at
63

General principle no. 1, UN World Charter for Nature, 48th plenary meeting, 28 October 1982

44

least sufficient for their survival, and to this end necessary habitats
shall be safeguarded;64
c. All areas of the earth, both land and sea shall be subject to these
principles of conservation; special protection shall be given to unique
areas, to representative samples of all the different types of
ecosystems and to the habitats of rare or endangered species;65
d. Ecosystems and organisms, as well as the land, marine and
atmospheric resources that are utilized by man, shall be managed to
achieve and maintain optimum sustainable productivity, but not in
such a way as to endanger the integrity of those other ecosystems or
species with which they coexist.66
146. In order to carry out the above general principles, every signatory
State is required or rather reminded, among others, that:
a. In the decision-making process, it shall be recognized that mans
needs can be met only by ensuring the proper function of natural
systems and by respecting the principles set forth in the present
charter;67
b. In the planning and implementation of social and economic
development activities, due account shall be taken of the fact that
the conservation of nature is an integral part of those activities;68
c. In formulating long-term plans for economic development, population
growth and the improvement of standards of living, due account shall
be taken of the long-term capacity of natural systems to ensure the
subsistence and settlement of the populations concerned, recognizing
that

this

capacity

may

be

enhanced

through

science

and

technology;69 and
d. The allocation of areas of the earth to various uses shall be planned,
and due account shall be taken of the physical constraints, the
biological productivity and diversity and the natural beauty of the
areas concerned.70
147. The Charter further reminded states that activities which might
have an impact on nature shall be controlled, and the best available

64

General principle no. 2, Ibid

General principle no. 3, Ibid
66
General principle no. 4, Ibid
67
Function No. 6, Ibid
68
Function No. 7, Ibid
69
Function No. 8, Ibid
70
Function No. 8, Ibid
65

45

technologies that minimize significant risks to nature or other adverse effects

shall be used.71 In particular:
a. Activities which are likely to cause irreversible damage to nature
shall be avoided;
b. Activities which are likely to pose a significant risk to nature shall
be preceded by an exhaustive examination; their proponents shall
demonstrate that expected benefits outweigh potential damage to
nature, and where potential adverse effects are not fully
understood, the activities should not proceed; and
c. Activities which may disturb nature shall be preceded by
assessment of their consequences, and environmental impact
studies of development projects shall be conducted sufficiently in
advance, and if they are to be undertaken, such activities shall be
planned and carried out so as to minimize potential adverse
effects.
148. The Philippine Government knowingly failed in the foregoing
generally-accepted precepts in International Law under the UN World Charter
for Nature when it allowed oil exploration to take place inside the Taon Strait
which is a declared protected seascape.
The Philippine Government
Violated Conservation Principles
Embodied in other Multilateral
Environment Agreements (MEAS)
149. Through its sanctioned oil exploration project inside a declared
protected seascape at Taon Strait and a well-known critical habitat of
endangered species, the Philippine Government has grossly violated the
conservation principles embodied in the following multilateral environmental
laws:
150. The oil exploration project subject to this suit is inconsistent with
the in situ and ex situ conservation principles embodied in Agenda 21 at the

71

Function 11, Ibid

46

United Nations Conference on Environment and Development at Rio de Janiero

on June 16, 199272 and in the Convention of Biological Diversity (1992).73
151. As extensively discussed in the preliminary, the Philippine
Government has likewise derogated the stipulations in 1979 Bonn Convention
on Conservation of Migratory Species of Wild Animals.
152. Based on the foregoing disquisition, the Philippines is definitely
liable for international delicts because:
a.

It did not respect the functioning ecosystem in Taon Strait when

its agencies decided to allow oil exploration in the area without
undertaking sufficiently in advance an exhaustive examination and
assessment showing that the benefits of the project outweigh the
potential damage to as well as laying measures that would
minimize whatever potential adverse effects on the marine
ecosystem;

b.

Nor it did give special protection to Your Petitioners and to their

habitats.

153. Albeit, the subject oil exploration project that the Philippine
Government has sanctioned has only shown to gravely endanger Your
Petitioners integrity, well-being and existence.
CONCLUDING STATEMENT:
ON EPISTOLARY JURISDICTION AND
HARD LOOK DOCTRINE
154. At the core of this suit are three focal issues: (a) the right of Marine
Mammals to sue through their stewards; (b) the constitutionality of petroleum72

15.5. Governments at the appropriate levels, consistent with national policies and practices, with the
cooperation of the relevant United Nations bodies and, as appropriate, intergovernmental organizatihons
and, with the support of indigenous people and their communities, non-governmental organizations and
other groups, including the business and scientific communities, and consistent with the requirements of
international law, should, as appropriate: (g) Take action where necessary for the conservation of
biological diversity through the in situ conservation of ecosystems and natural habitats, as well as primitive
cultivars and their wild relatives, and the maintenance and recovery of viable populations of species in their
natural surroundings, and implement ex situ measures, preferably in the source country. In situ measures
should include the reinforcement of terrestrial, marine and aquatic protected area systems and embrace,
inter alia, vulnerable freshwater and other wetlands and coastal ecosystems, such as estuaries, coral reefs
and mangroves.
73

A. In-Situ Conservation: Each Contracting Party shall, as far as possible and as appropriate: (d)
Promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species
in natural surroundings;
B. Ex-situ Conservation. Each Contracting Party shall, as far as possible and as appropriate, and
predominantly for the purpose of complementing in-situ measures: (c) Adopt measures for the recovery and
rehabilitation of threatened species and for their reintroduction into their natural habitats under appropriate
conditions

47

related Service Contracts; and (c) the extent of the powers of the Philippine
Courts to inquire into the administrative procedures relating to the
environment.
155. The first issue may be novel at first glance. But looking back at
how man abused his unique position in the order of things on this earth, it now
becomes imperative to grant legal standing unto nature, especially to Your
Petitioners Marine Mammals residents of Taon Strait Protected Seascape to
sue through their stewards who will be affected by their damage or loss.
Lowering the benchmark
In locus standi is an
Exercise of Epistolary
Jurisdiction
156. Relaxing the rules by way granting locus standi to Your Petitioners
through their stewards or representatives is a valid exercise of this Honorable
Courts epistolary jurisdiction. By epistolary jurisdiction, access to judicial
redress may be obtained without a lawyer or even filing of formal papers.
157. The Supreme Court of India blazed the trail. It took the view that
when any member of a public or social organization espoused the cause of the
poor and the downtrodden such member should be permitted to move the
Court even by merely writing a letter without incurring expenditure of his own.
In such a case the letter was regarded as an appropriate proceeding falling
within the purview of Article 32 of the Constitution.74
158. Epistolary jurisdiction is nothing new in this jurisdiction. Very
recently, the Honorable Supreme Court has established its Small Claims Court,
promulgating its epistolary rules of procedure.
Invalidity of Service
Contract No. 46 is already
Settled by this Court
159. The second issue however is chicken75 for the Honorable Court to
deal with as it had already ruled that service contracts which are of the 1973
variety are invalid.76

74

Page xxxiii Compendium on Judicial Decisions Related to Environment, Vol. I, published by the United
Nations Environmental Programme (UNEP), December 1998
75
A street term which means easy
76
La Bugal, supra as restated in Didipio Earth-Savers Multipurpose Assn., Inc., et al. vs. Elisea Gozun,
et al

48

Doctrine of Hard Look

Should be established
160. Public respondent DENR is the agency mandated by Law to protect
the natural environment of the Philippines. It is specifically tasked to protect
and advance the right of the people to a balanced and healthful ecology.
Through its Environmental Management Bureau (EMB) it is mandated to care
for, protect, and restore the countrys environmental quality and the
sustainability of its natural resources.
161. Paraphrasing MMDA v. Concerned Residents of Cavite, supra: if
the track record of DENR is to be the norm, it seems that we do not have an
agency at all that is attending to our environment, what with the many
environmental violations we see day in and day out.
162. This regulatory instrument called the ECC has been much abused by
the very agency vested by law with jurisdiction over it. It has lately become a
milking cow to enterprising EMB personnel who prepares the documents for the
proponent and short cuts the EIA process in exchange for a fee.
163. Here is a perfect example of the regulator acting at the behest of
the regulated. Its like allowing the drug enforcement agency to be headed by
a drug lord or a mining regulatory board to be headed by an illegal miner. As
satirically observed by Justice Douglas in Sierra Club, supra: the older such a
commission gets to be, the more inclined it will be found to take the business
and railroad view of things.
164. It is therefore high time for our Courts to take a serious and hard
look at the EIA procedures being not observed by the EMB. The dearth of
environmental jurisprudence on this subject matter has contributed to this
malaise. Polluters and violators of the environment in cahoots with some
corrupt EMB officials are the more emboldened to go scot-free and do business
as usual because nobody is policing their police.
165. This doctrine of hard look, which takes its roots in the United
States, is now being customarily applied and observed in many jurisdictions
where the issue involved has something to do with possible adverse impacts to
the environment.

49

166. The National Environmental Policy Act (NEPA) of the U.S. mandates
that all Federal agencies "to the fullest extent possible" must provide a
detailed environmental impact statement (EIS).77 From this provision sprung
the so-called doctrine of hard look, where courts consistently hold that at a
minimum, NEPA imposes a duty on Federal agencies to take a hard look at
environmental consequences.78
.

167. Under this doctrine, courts carefully check every EIS for

completeness of information and detail, soundness of analysis, thorough

discussion of alternatives, and disclosure of sources. Some court decisions even
order agencies to prepare new statements if these criteria are not met.
168. Applied at bar, the onus in proving whether the oil exploration
project now being enjoined has strictly met with the minimum requirements in
the Philippine EIS law and rules is shifted to respondents.
169. Borne from the half-hearted Comment of the Honorable Solicitor
General, it is established by deduction that respondents violated the EIA
process for the project thereby necessitating the strict application of the hard
look doctrine.
PRAYER
WHEREFORE, Your Petitioners reiterate their prayer in their initiatory
petition and further ask the Honorable Supreme Court:
a. Consistent with its epistolary jurisdiction, to grant Petitioners marine
mammals the locus standi ;
b. To declare Service Contract No. 46 and other similar contracts
entered into by Public Respondent DOE as illegal, invalid and
unconstitutional;
c. To permanently enjoin all oil exploration activities pursued under
Presidential Decree 87 until an enabling general law on petroleum
exploration and exploitation is passed by Congress;
d. To declare the Philippines to be in breach of its commitments to
Multilateral Environmental Agreements which it is signatory;
e. To declare the ECC issued to JAPEX as invalid for being issued in utter
disregard to the EIA Law; and

77
78

42 U.S.C. 4332
Natural Resources Defense Council v. Morton, 458 F.2d 827, 838 (D.C. Cir., 1972)

50

f. Consistent with its exercise of continuing mandamus, to order public

respondent

DENR

through

its

statutorily-created

bureau,

the

Protected Areas and Wildlife Division (PAWD) to immediately

commence and complete the Protected Area Management Plan for
Taon Strait Protected Seascape pursuant to the NIPAS Act and to
thereby render periodic progress reports to this Honorable Court.
Your Petitioners also pray for such other reliefs and remedies as may be
adjudged just and equitable under the premises.
This memorandum is respectfully submitted on 27 December, 2008 at
Cebu City for Manila, Philippines.
BENJAMIN A. CABRIDO JR.
Counsel for Petitioners
G/F Pueblo Aznar Uno Building
M. J. Cuenco cor. Maxilom Avenues, 6000 Cebu City
IBP No. 05572 /01-07-08/Cebu City
PTR No. 3612299/01-07-08/Cebu City
Roll of Attorneys No. 48949
Email: benzcab@yahoo.com
Telefax: 032-4129106
MCLE II # 0012313/ Sept. 15, 2008
Copy furnished:
1. The Honorable Solicitor General
c/o ASG Rex Bernardo L. Pascual
134 Amorsolo St., Legaspi Village, 1229 Makati City
2. Atty. Aristeo O. Carino
Counsel for Movant SOS
20th Flr., Pearl Bank Center
146 Valero St., Salcedo Village, 1229 Makati City
3. Hon. Secretary Angelo Reyes
Department of Energy
Energy Center, Merrit Road
Fort Bonifacio, 1201 Taguig City
4. Hon. Secretary Jose L. Atienza
Department of Environment and Natural Resources
DENR Central Office, Visayas Avenue
Diliman, 1104 Quezon City
5. Directors Leonardo Sibbaluca and Malcolm Samiento
DENR-Region VII, Greenplains
Banilad, 6014 Mandaue City
EXPLANATION OF SUBSTITUTED SERVICE
The foregoing is served through registered mail due to the distance of their
respective offices with that of undersigned making personal service impracticable and
costly.
BENJAMIN A. CABRIDO JR.

51