Concurring Opinion 2 G.R. Nos.

209271, 209276,
209301 & 209430 (Velasco, Leonen)

G.R. No. 209271 (International Service for the Acquisition of AgriBiotech Applications, Inc. vs. Greenpeace Southeast Asia
[Philippines},Magsasaka at Siyentipiko sa Pagpapaunlad ng Agrikultura [MASIPAG},Rep. Teodoro Casino, et al.)

At bar are consolidated petitions seeking the reversal of the Decision of the Court of Appeals (CA) dated May 17, 2013, as
well as its Resolution dated September 20, 2013, in CA-G.R. SP No. 00013 which permanently enjoined the conduct of field
trials for the genetically modified eggplant, commonly known as "'Bt Talong," on concerns for biosafety. Biosafety is a
condition in which the probability of harm, injury and damage resulting from the intentional and unintentional introduction
and/or use of a regulated article is within acceptable and manageable levels. "Regulated article" refers to genetically
modified organisms (GMOs), which are "living modified organisms" under the Cartagena Protocol on Biosafety and refers to
any living organism that possesses a novel combination of genetic material obtained through the use of modern
biotechnology. Regulated articles also include the products of GMOs. Prior, however, to the introduction of biotechnology
and genetic modification of organisms in the Philippines, one of the main enactments governing environmental protection
is PD 1151, the Philippine Environmental Policy issued by then President Marcos on 1977; Environmental Impact
Statements.

EO 430 created the National Committee on Biosafety of the Philippines (NCBP) and vested upon it the following functions,
to wit: (a) Identify and evaluate potentials hazards involved in initiating genetic engineering experiments or the introduction
of new species and genetically engineered organisms and recommend measures to minimize risks; xxx

The DA was designated as the agency that shall address biosafety issues related to the country's agricultural productivity
and food security. The Department of Science and Technology, is to take the lead in ensuring that the best available science
is utilized and applied in adopting biosafety policies, measures and guidelines, and in making biosafety decisions. The
Department of Environment and Natural Resources (DENR) was mandated to ensure that environmental assessments are
done and impacts identified in biosafety decisions.

The Present Controversy

The Bt Talong is a type of eggplant bio-engineered to develop resistance to lepidopteran larvae, through the incorporation
of crystal toxin genes from the soil bacterium Bacillus thuringiensis (Bt) which triggers the production of the protein Cry 1
Ac which is toxic to the said target insect pests. Various groups resisted due to lack of public consultation, absence of
adequate study to determine the effect of Bt talong field testing on friendly insects, absence of risk assessment on the
potential impacts of GM crops on human health and the environment, and the possibility of cross-pollination of Bt eggplants
with native species or variety of eggplants, and serious threat to human health if these were introduced in the market.

On July 10, 2012, the Court referred the case to the CA for acceptance of the return of the writ and for hearing, reception
of evidence, and rendition of judgment. The following issues were submitted for the CA's resolution:
1. Whether or not Greenpeace, et al. have the legal standing to file the petition for writ of kalikasan;
2. Whether or not the case presented a justiciable controversy; and
3. Whether or not said petition had been rendered moot and academic by the alleged termination of the Bt talong field
testing. CA resolved that: ( 1) Greenpeace, et al. possess the requisite legal standing to file the petition; (2) assuming
arguendo that the field trials have already been terminated, the case is not yet moot since it is capable of repetition yet
evading review; and (3) the alleged non-compliance with environmental and local government laws present justiciable
controversies for resolution by the court. CA, rendered a Decision in favor of Greenpeace, et al., and order its cease and
desist from further conducting bt talong field trials.

With these, it is respectfully submitted that the omission by the project proponents of securing an ECC or CNC, whichever
is proper for its project, prior to the conduct of the field testing, and the DENR-EMB 's failure to evaluate GMO field trials
within the purview of the PEISS and simply allowing the trials to be conducted without a prior determination of whether
the conduct of an EIA or the prior securing of an ECC is a condition sine qua non for its conduct, warrant the issuance of a
permanent environmental protection order directing:
a. herein project proponents to cease and desist from continuing any pending Bt talong field trials without first complying
with other applicable environmental laws, including the PEISS; and b. the DENR-EMB to apply the PEISS to GMO field trials.
On these premises, I vote to DENY the petition on the grounds that the project proponents failed to comply with the
requirements under the PEISS and that the DENR-EMB failed to require from _/he project proponents the securing of an
ECC or a CNC prior to the fiel}V'testing of the Bt talong.

The Cartagena Protocol's objective is to ensure "an adequate level of protection in the field of the safe transfer, handling
and use of living modified organisms resulting from modem biotechnology xxx. Article 23 of the Cartagena Protocol stresses
that the public must be consulted in the decision-making process regarding living modified organisms, and that the decisions
made with this regard must be communicated to the public. The Cartagena Protocol emphasizes that risk assessment should
be carried out in a scientifically sound manner. In addition, Annex III of the Cartagena Protocol also provides that risk
assessment must also be done in a transparent manner.

Tubbataha Incident: UNCLOS Non-Member US Govt Still Bound By The Customary Laws of Navigation (Arigo vs Swift,
2014)

Facts:
In 2013, the USS Guardian of the US Navy ran aground on an area near the Tubbataha Reefs, a marine habitat of which
entry and certain human activities are prevented and afforded protection by a Philippine law. The grounding incident
prompted the petitioners to seek for issuance of Writ of Kalikasan with TEPO from the SC.
Among those impleaded are US officials in their capacity as commanding officers of the US Navy. As petitioners argued,
they were impleaded because there was a waiver of immunity from suit between US and PH pursuant to the VFA terms.
Petitioners claimed that the grounding, salvaging and post-salvaging operations of the USS Guardian violated their
constitutional rights to a balanced and healthful ecology since these events caused and continue to cause environmental
damage of such magnitude as to affect other provinces surrounding the Tubbataha Reefs. Aside from damages, they sought
a directive from the SC for the institution of civil, administrative and criminal suits for acts committed in violation of
environmental laws and regulations in connection with the grounding incident. They also prayed for the annulment of some
VFA provisions for being unconstitutional.

Issue 1: W/N the US Government has given its consent to be sued through the VFA
No. The general rule on states immunity from suit applies in this case.
First, any waiver of State immunity under the VFA pertains only to criminal jurisdiction and not to special civil actions such
as for the issuance of the writ of kalikasan. Hence, contrary to petitioners claim, the US government could not be deemed
to have waived its immunity from suit. Second, the US respondents were sued in their official capacity as commanding
officers of the US Navy who have control and supervision over the USS Guardian and its crew. Since the satisfaction of any
judgment against these officials would require remedial actions and the appropriation of funds by the US government, the
suit is deemed to be one against the US itself. Thus, the principle of State Immunity in correlation with the principle of
States as sovereign equals par in parem non habet non imperium bars the exercise of jurisdiction by the court over their
persons.

Issue 2: W/N the US government may still be held liable for damages caused to the Tubbataha Reefs
Yes. The US government is liable for damages in relation to the grounding incident under the customary laws of navigation.

The conduct of the US in this case, when its warship entered a restricted area in violation of RA 10067 and caused damage
to the TRNP reef system, brings the matter within the ambit of Article 31 of the UNCLOS. While historically, warships enjoy
sovereign immunity from suit as extensions of their flag State, Art. 31 of the UNCLOS creates an exception to this rule in
cases where they fail to comply with the rules and regulations of the coastal State regarding passage through the latters
internal waters and the territorial sea.

Although the US to date has not ratified the UNCLOS, as a matter of long-standing policy, the US considers itself bound by
customary international rules on the traditional uses of the oceans, which is codified in UNCLOS.
As to the non-ratification by the US, it must be noted that the US refusal to join the UNCLOS was centered on its
disagreement with UNCLOS regime of deep seabed mining (Part XI) which considers the oceans and deep seabed commonly
owned by mankind. Such has nothing to do with the acceptance by the US of customary international rules on navigation.
(Justice Carpio)
Hence, non-membership in the UNCLOS does not mean that the US will disregard the rights of the Philippines as a Coastal
State over its internal waters and territorial sea. It is thus expected of the US to bear international responsibility under
Art. 31 in connection with the USS Guardian grounding which adversely affected the Tubbataha reefs. ##

Other Issues
Claim for Damages Caused by Violation of Environmental Laws Must be Filed Separately
The invocation of US federal tort laws and even common law is improper considering that it is the VFA which governs
disputes involving US military ships and crew navigating Philippine waters in pursuance of the objectives of the agreement.

As it is, the waiver of State immunity under the VFA pertains only to criminal jurisdiction and not to special civil actions.
Since jurisdiction cannot be had over the respondents for being immuned from suit, there is no way damages which resulted
from violation of environmental laws could be awarded to petitioners.
In any case, the Rules on Writ of Kalikasan provides that a criminal case against a person charged with a violation of an
environmental law is to be filed separately. Hence, a ruling on the application or non-application of criminal jurisdiction
provisions of the VFA to a US personnel who may be found responsible for the grounding of the USS Guardian, would be
premature and beyond the province of a petition for a writ of Kalikasan.

Challenging the Constitutionality of a Treaty Via a Petition for the Issuance of Writ of Kalikasan is Not Proper
The VFA was duly concurred in by the Philippine Senate and has been recognized as a treaty by the US as attested and
certified by the duly authorized representative of the US government. The VFA being a valid and binding agreement, the
parties are required as a matter of international law to abide by its terms and provisions. A petition under the Rules on Writ
of Kalikasan is not the proper remedy to assail the constitutionality of its provisions.

WEST TOWER CONDOMINIUM CORPORATION, on behalf of the Residents of West Tower Condominium and in
representation of Barangay Bangkal, and others, including minors and generations yet unborn, Petitioners,
vs.
FIRST PHILIPPINE INDUSTRIAL CORPORATION, FIRST GEN CORPORATION and their RESPECTIVE BOARD OF DIRECTORS AND
OFFICERS, JOHN DOES, and RICHARD DOES, Respondents

What started as a two-drum leak at the initial stages became a 15-20 drum a day affair. Eventually, the sump pit of the
condominium was ordered shut down by the City of Makati to prevent the discharge of contaminated water into the
drainage system of Barangay Bangkal. Eventually, the fumes compelled the residents of West Tower to abandon their
respective units on July 23, 2010 and the condo's power was shut down.

Petitioner FPIC initially disowned any leak from its oil pipeline. Thus, the residents of West Tower shouldered the expenses
of hauling the waste water from its basement, which eventually required the setting up of a treatment plant in the area to
separate fuel from the waste water. On October 28, 2010, the University of the Philippines-National Institute of Geological
Sciences (UP-NIGS), which the City of Makati invited to determine the source of the fuel, found a leak in FPIC's WOPL about
86 meters from West Tower.

A day after, or on October 29, 2010, FPIC admitted that indeed the source of the fuel leak is the WOPL, which was already
closed since October 24, 2010, but denied liability by placing blame on the construction activities on the roads surrounding
West Tower.

Petitioners as Real Parties-in-Interest

On the procedural aspect, We agree with the CA that petitioners who are affected residents of West Tower and Barangay
Bangkal have the requisite concern to be real parties-in-interest to pursue the instant petition.
SC: Respondent FPIC is also DIRECTED to undertake and continue the remediation, rehabilitation and restoration of the
affected Barangay Bangkal environment until full restoration of the affected area to its condition prior to the leakage is
achieved. For this purpose, respondent FPIC must strictly comply with the measures, directives and permits issued by the
DENR for its remediation activities in Barangay Bangkal, including but not limited to, the Wastewater Discharge Permit and
Permit to Operate. The DENR has the authority to oversee and supervise the aforesaid activities on said affected barangay.

V. The Inter-Agency Committee on Environmental Health under the City Government of Makati shall SUBMIT to the DENR
its evaluation of the Remediation Plan prepared by CH2M Hill Philippines, Inc. within thirty (30) days from receipt hereof.

VI. Petitioners' prayer for the creation of a special trust fund to answer for similar contingencies in the future is DENIED.

WILFREDO MOSQUEDA v. DAVAO FRUITS CORPORATION

After several committee hearings and consultations with various stakeholders, the Sangguniang Panlungsod of Davao City
enacted Ordinance No. 0309, series of 2007, to impose a ban against aerial spraying as an agricultural practice by all
agricultural entities within Davao City.

The Pilipino Banana Growers and Exporters Association, filed their petition in the RTC to challenge the constitutionality of
the ordinance, and to seek the issuance of provisional reliefs through a temporary restraining order (TRO) and/or writ of
preliminary injunction. They alleged that the ordinance exemplified the unreasonable exercise of police power; violated the
equal protection clause; amounted to the confiscation of property without due process of law; and lacked publication
pursuant] to Section 5116 of Republic Act No. 7160 (Local Government Code).

RTC upheld the constitutionality of the ordinance, while CA granted the application and consequently issued a TRO to
meanwhile enjoin the effectivity of the ordinance.

The petitioners finally plead that the Court should look at the merits of the ordinance based on the precautionary principle.
They argue that under the precautionary principle, the City of Davao is justified in enacting Ordinance No. 0309-07 in order
to prevent harm to the environment and human health despite the lack of scientific certainty.

SC: The petitioners' plea and argument cannot be sustained. It is dangerous to quickly presume that the effects of aerial
spraying would be adverse even in the absence of evidence. Accordingly, for lack of scientific data supporting a ban on aerial
spraying, Ordinance No. 0309-07 should be struck down for being unreasonable. Ordinance No. 0309-07 is an ultra vires
act

The Court further holds that in addition to its unconstitutionality for carrying an unwarranted classification that contravenes
the Equal Protection Clause, Ordinance No. 0309-07 suffers from another legal infirmity.

The petitioners represent that Ordinance No. 0309-07 is a valid exercise of legislative and police powers by the Sangguniang
Bayan of Davao City pursuant to Section 458 in relation to Section 16 both of the Local Government Code. The respondents
counter that Davao City thereby disregarded the regulations implemented by the Fertilizer and Pesticide Authority (FPA),
including its identification and classification of safe pesticides and other agricultural chemicals.
WHEREFORE, the Court DENIES the consolidated petitions for review on certiorari for their lack of merit; AFFIRMS the
decision promulgated on January 9, 2009 in C.A.-G.R. CV No. 01389-MIN. declaring Ordinance No. 0309-07
UNCONSTITUTIONAL; PERMANENTLY ENJOINS respondent City of Davao, and all persons or entities acting in its behalf or
under its authority, from enforcing and implementing Ordinance No. 0309-07; and ORDERS the petitioners to pay the costs
of suit.

LNL ARCHIPELAGO MINERALS, INC., Petitioner,

vs.
AGHAM PARTY LIST

The Issues

The issues for our resolution are (1) whether LAMI violated the environmental laws as alleged by Agham, and (2) whether
LAMI flattened any mountain and caused environmental damage of such magnitude as to prejudice the life, health or
property of inhabitants in two or more cities or provinces.

The present case involves the extraordinary remedy of a Writ of Kalikasan which is under the Rules of Procedure for
Environmental Cases.42 Section 1, Rule 7, Part III of the said Rules provides:

Section 1. Nature of the writ. The writ is a remedy available to a natural or juridical person, entity authorized by law,
peoples organization, non-governmental organization, or any public interest group accredited by or registered with any
government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or
threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity,
involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more
cities or provinces.

The Writ of Kalikasan, categorized as a special civil action and conceptualized as an extraordinary remedy, covers
environmental damage of such magnitude that will prejudice the life, health or property of inhabitants in two or more cities
or provinces. The writ is available against an unlawful act or omission of a public official or employee, or private individual
or entity.

The following requisites must be present to avail of this remedy: (1) there is an actual or threatened violation of the
constitutional right to a balanced and healthful ecology; (2) the actual or threatened violation arises from an unlawful act
or omission of a public official or employee, or private individual or entity; and (3) the actual or threatened violation involves
or will lead to an environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two
or more cities or provinces.

In the present case, Agham, in its Petition for a Writ of Kalikasan, cited two laws which LAMI allegedly violated: (1) Section
68 of the Revised Forestry Code, as amended; and (2) Sections 57 and 69 of the Philippine Mining Act.

Section 68 of the Revised Forestry Code, as amended, states:

Sec. 68. Cutting, Gathering and/or collecting Timber, or Other Forest Products Without License. Any person who shall cut,
gather, collect, remove timber or other forest products from any forest land, or timber from alienable or disposable public
land, or from private land, without any authority, or possess timber or other forest products without the legal documents
as required under existing forest laws and regulations, shall be punished with the penalties imposed under Articles 309 and
310 of the Revised Penal Code: Provided, That in the case of partnerships, associations, or corporations, the officers who
ordered the cutting, gathering, collection or possession shall be liable, and if such officers are aliens, they shall, in addition
to the penalty, be deported without further proceedings on the part of the Commission on Immigration and Deportation.

Remarks and Recommendation:

The construction of the access road on the low ridge does not pose adverse environmental impact to the adjoining
communities more so to the larger areas or the entire province of Zambales and Pangasinan.

resumption of regularity

It is a legal presumption, born of wisdom and experience, that official duty has been regularly performed. Therefore, the
fact that the "remarks and recommendation" of the composite team from EMB R3, MGB R3, and PENRO Zambales were
made in the exercise of their government function, the presumption of regularity in the performance of such official duty
stands. It is incumbent upon petitioner to prove otherwise, a task which it failed to do here.
Expert findings are afforded great weight

The findings of facts of administrative bodies charged with their specific field of expertise, are afforded great weight by the
courts, and in the absence of substantial showing that such findings are made from an erroneous estimation of the evidence
presented, they are conclusive, and in the interest of stability of the governmental structure, should not be disturbed. x x
x.

WHEREFORE, we GRANT the petition. We REVERSE and SET ASIDE the Amended Decision dated 13 September 2013 of the
Court of Appeals and REINSTATE AND AFFIRM the original Decision dated 23 November 2012 of the Court of Appeals in CA-
G.R. SP No. 00012 which DENIED the petition for the issuance of the privilege of the Writ of Kalikasan.

Endangered Species May Be Impleaded as the Real Parties-In-Interest in a Citizens Suit (Resident vs DOE, 2015)

Resident Marine Mammals vs Secretary of Department of Energy

Case Digest GR 180771 April 21 2015

Facts:

In 2002, the Department of Energy entered into a Geophysical Survey and Exploration Contract with JAPEX, a 100% Japanese
corporation, which was later converted to a service contract, known as SC-46, for the exploration, development and
utilization of petroleum resources in an area that basically affects the Tanon Strait. The President at that time was not a
signatory to the SC-46 and such contract was not submitted to the Congress for review.

Tanon Strait is a narrow passage of water in Cebu which harbors a biodiversity of marine life and is declared by laws as a
protected seascape. When JAPEX started its seismic surveys and drilling activities over the area, petitions were filed assailing
the constitutionality of SC-46. One petition protesting the activities for its ecological impact was in the name of Resident
Marine Mammals which are literally toothed whales, turtles and such, joined in by human petitioners referred to as
Stewards, in their representative as well as personal capacity. Pres. Arroyo was also impleaded as an unwilling co-
petitioner, purportedly because of her express declaration and undertaking under the ASEAN Charter to protect habitats
and other environmental concerns.

FIDEC, an organization committed to the welfare of marginal fisherfolk in the area, also questioned the SC-46 on the ground
that service contracts are no longer allowed under the 1987 Constitution, and that if it were, SC-46 is still null and void
because it did not comply with the Constitution, most especially the safeguards that the Court laid down in La Bugal Blaan
case.

Remedial Law

Issue 1: W/N the Resident Marine Mammals, or animals in general, have standing as the real party-in-interests in this suit

Yes. The Rules of Procedure for Environmental Cases allows filing of a citizens suit. A citizens suit under this rule allows
any Filipino citizen to file an action for the enforcement of environmental law on behalf of minors or generations yet unborn.
It is essentially a representative suit that allows persons who are not real parties in interest to institute actions on behalf of
the real party in interest.

Dissent

Issue 2: W/N the name of former President Arroyo impleaded in the petition as an unwilling co-plaintiff is proper

No. The name of Pres Arroyo as an unwilling plaintiff impleaded in the petition should be stricken from the title of the case.
First, under Rule 3, Sec 10 of the ROC, when the consent of a party who should be joined as plaintiff cannot be obtained,
he or she may be made a party defendant. This will put the unwilling party under the jurisdiction of the court, which may
properly implead him or her through its processes. The unwilling partys name cannot be simply included in the petition
without her knowledge or consent, as this would be a denial of due process.

Second, impleading the former President for an act she made in performance of the functions of her office is contrary to
the public policy against embroiling Presidents in suits.

Political Law

Issue 3: W/N service contracts are no longer allowed by the 1987 Constitution

No. As settled in the La Bugal case, the deletion of the words service contracts in the 1987 Constitution did not amount
to a ban on them per se. In fact, the deliberations of the members of the Constitutional Commission show that in
deliberating on Art XII Sec 2(4), they were actually referring to service contracts as understood in the 1973 Constitution.
The framers, in short, used the term service contracts in referring to agreements involving technical or financial
assistance.

Issue 4: W/N SC-46 is valid

No. The SC-46 is not valid because it did not comply with the Art XII, Sec 2 (4) of the Constitution. First, it was not crafted in
accordance with a general law that provides standards, terms and conditions; second, it was not signed by the President
for and on behalf of the Philippine government; and third, it was not reported by the President to the Congress within 30
days of execution.

BORACAY FOUNDATION, INC., v

THE PROVINCE OF AKLAN, REPRESENTED BY GOVERNOR CARLITO S. MARQUEZ, THE PHILIPPINE RECLAMATION AUTHORITY,
AND THE DENR-EMB (REGION VI),

This is an original petition for the issuance of an Environmental Protection Order in the nature of a continuing mandamus
under A.M. No. 09-6-8-SC, otherwise known as the Rules of Procedure for Environmental Cases, promulgated on April 29,
2010