Writ of Kalikasan

G.R. No.
206510 September 16, 2014
MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV. DEOGRACIAS
S. INIGUEZ, JR., Bishop-Emeritus of Caloocan, FRANCES Q. QUIMPO, CLEMENTE G. BAUTISTA,
JR., Kalikasan-PNE, MARIA CAROLINA P. ARAULLO, RENATO M. REYES, JR., Bagong Alyansang
Makabayan, HON. NERI JAVIER COLMENARES, Bayan Muna Partylist, ROLAND G. SIMBULAN,
PH.D., Junk VF A Movement, TERESITA R. PEREZ, PH.D., HON. RAYMOND V. PALATINO,
Kabataan Party-list, PETER SJ. GONZALES, Pamalakaya, GIOVANNI A. TAPANG, PH. D., Agham,
ELMER C. LABOG, Kilusang Mayo Uno, JOAN MAY E. SALVADOR, Gabriela, JOSE ENRIQUE A.
AFRICA, THERESA A. CONCEPCION, MARY JOAN A. GUAN, NESTOR T. BAGUINON, PH.D., A.
EDSEL F. TUPAZ, Petitioners,
vs.
SCOTT H. SWIFT in his capacity as Commander of the US. 7th Fleet, MARK A. RICE in his capacity
as Commanding Officer of the USS Guardian, PRESIDENT BENIGNO S. AQUINO III in his capacity
as Commander-in-Chief of the Armed Forces of the Philippines, HON. ALBERT F. DEL ROSARIO,
Secretary, pepartment of Foreign Affair.s, HON. PAQUITO OCHOA, JR., Executiv~.:Secretary,
Office of the President, . HON. VOLTAIRE T. GAZMIN, Secretary, Department of National Defense,
HON. RAMON JESUS P. P AJE, Secretary, Department of Environment and Natural Resoz!rces,
VICE ADMIRAL JOSE LUIS M. ALANO, Philippine Navy Flag Officer in Command, Armed Forces of
the Philippines, ADMIRAL RODOLFO D. ISO RENA, Commandant, Philippine Coast Guard,
COMMODORE ENRICO EFREN EVANGELISTA, Philippine Coast Guard Palawan, MAJOR GEN.
VIRGILIO 0. DOMINGO, Commandant of Armed Forces of the Philippines Command and LT. GEN.
TERRY G. ROBLING, US Marine Corps Forces. Pacific and Balikatan 2013 Exercise Co-
Director, Respondents.
DECISION
VILLARAMA, JR, J.:
Before us is a petition for the issuance of a Writ of Kalikasan with prayer for the issuance of a Temporary
Environmental Protection Order (TEPO) under Rule 7 of A.M. No. 09-6-8-SC, otherwise known as the
Rules of Procedure for Environmental Cases (Rules), involving violations of environmental laws and
regulations in relation to the grounding of the US military ship USS Guardian over the Tubbataha Reefs.
Factual Background
The name "Tubbataha" came from the Samal (seafaring people of southern Philippines) language which
means "long reef exposed at low tide." Tubbataha is composed of two huge coral atolls - the north atoll
and the south atoll - and the Jessie Beazley Reef, a smaller coral structure about 20 kilometers north of
the atolls. The reefs of Tubbataha and Jessie Beazley are considered part of Cagayancillo, a remote
island municipality of Palawan.1
In 1988, Tubbataha was declared a National Marine Park by virtue of Proclamation No. 306 issued by
President Corazon C. Aquino on August 11, 1988. Located in the middle of Central Sulu Sea, 150
kilometers southeast of Puerto Princesa City, Tubbataha lies at the heart of the Coral Triangle, the global
center of marine biodiversity.
In 1993, Tubbataha was inscribed by the United Nations Educational Scientific and Cultural Organization
(UNESCO) as a World Heritage Site. It was recognized as one of the Philippines' oldest ecosystems,
containing excellent examples of pristine reefs and a high diversity of marine life. The 97,030-hectare
protected marine park is also an important habitat for internationally threatened and endangered marine
species. UNESCO cited Tubbataha's outstanding universal value as an important and significant natural
habitat for in situ conservation of biological diversity; an example representing significant on-going
ecological and biological processes; and an area of exceptional natural beauty and aesthetic importance. 2
On April 6, 2010, Congress passed Republic Act (R.A.) No. 10067,3 otherwise known as the "Tubbataha
Reefs Natural Park (TRNP) Act of 2009" "to ensure the protection and conservation of the globally
significant economic, biological, sociocultural, educational and scientific values of the Tubbataha Reefs
into perpetuity for the enjoyment of present and future generations." Under the "no-take" policy, entry into
the waters of TRNP is strictly regulated and many human activities are prohibited and penalized or fined,
including fishing, gathering, destroying and disturbing the resources within the TRNP. The law likewise
created the Tubbataha Protected Area Management Board (TPAMB) which shall be the sole policy-
making and permit-granting body of the TRNP.
The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In December 2012,
the US Embassy in the Philippines requested diplomatic clearance for the said vessel "to enter and exit
the territorial waters of the Philippines and to arrive at the port of Subic Bay for the purpose of routine ship
replenishment, maintenance, and crew liberty."4 On January 6, 2013, the ship left Sasebo, Japan for
Subic Bay, arriving on January 13, 2013 after a brief stop for fuel in Okinawa, Japan.1wphi1
On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in Makassar,
Indonesia. On January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea, the ship ran aground on the
northwest side of South Shoal of the Tubbataha Reefs, about 80 miles east-southeast of Palawan. No
cine was injured in the incident, and there have been no reports of leaking fuel or oil.
On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift, expressed regret for the
incident in a press statement.5 Likewise, US Ambassador to the Philippines Harry K. Thomas, Jr., in a
meeting at the Department of Foreign Affairs (DFA) on February 4, "reiterated his regrets over the
grounding incident and assured Foreign Affairs Secretazy Albert F. del Rosario that the United States will
provide appropriate compensation for damage to the reef caused by the ship."6 By March 30, 2013, the
US Navy-led salvage team had finished removing the last piece of the grounded ship from the coral reef.
On April 1 7, 2013, the above-named petitioners on their behalf and in representation of their respective
sector/organization and others, including minors or generations yet unborn, filed the present petition
agairtst Scott H. Swift in his capacity as Commander of the US 7th Fleet, Mark A. Rice in his capacity as
Commanding Officer of the USS Guardian and Lt. Gen. Terry G. Robling, US Marine Corps Forces,
Pacific and Balikatan 2013 Exercises Co-Director ("US respondents"); President Benigno S. Aquino III in
his capacity as Commander-in-Chief of the Armed Forces of the Philippines (AFP), DF A Secretary Albert
F. Del Rosario, Executive Secretary Paquito Ochoa, Jr., Secretary Voltaire T. Gazmin (Department of
National Defense), Secretary Jesus P. Paje (Department of Environment and Natural Resources), Vice-
Admiral Jose Luis M. Alano (Philippine Navy Flag Officer in Command, AFP), Admiral Rodolfo D. Isorena
(Philippine Coast Guard Commandant), Commodore Enrico Efren Evangelista (Philippine Coast Guard-
Palawan), and Major General Virgilio 0. Domingo (AFP Commandant), collectively the "Philippine
respondents."
The Petition
Petitioners claim that the grounding, salvaging and post-salvaging operations of the USS Guardian cause
and continue to cause environmental damage of such magnitude as to affect the provinces of Palawan,
Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros Oriental, Zamboanga del Norte, Basilan,
Sulu, and Tawi-Tawi, which events violate their constitutional rights to a balanced and healthful ecology.
They also seek a directive from this Court 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.
Specifically, petitioners cite the following violations committed by US respondents under R.A. No. 10067:
unauthorized entry (Section 19); non-payment of conservation fees (Section 21 ); obstruction of law
enforcement officer (Section 30); damages to the reef (Section 20); and destroying and disturbing
resources (Section 26[g]). Furthermore, petitioners assail certain provisions of the Visiting Forces
Agreement (VFA) which they want this Court to nullify for being unconstitutional.
The numerous reliefs sought in this case are set forth in the final prayer of the petition, to wit:
WHEREFORE, in view of the foregoing, Petitioners respectfully pray that the Honorable Court: 1.
Immediately issue upon the filing of this petition a Temporary Environmental Protection Order (TEPO)
and/or a Writ of Kalikasan, which shall, in particular,
a. Order Respondents and any person acting on their behalf, to cease and desist all operations
over the Guardian grounding incident;
b. Initially demarcating the metes and bounds of the damaged area as well as an additional buffer
zone;
c. Order Respondents to stop all port calls and war games under 'Balikatan' because of the
absence of clear guidelines, duties, and liability schemes for breaches of those duties, and
require Respondents to assume responsibility for prior and future environmental damage in
general, and environmental damage under the Visiting Forces Agreement in particular.
d. Temporarily define and describe allowable activities of ecotourism, diving, recreation, and
limited commercial activities by fisherfolk and indigenous communities near or around the TRNP
but away from the damaged site and an additional buffer zone;
2. After summary hearing, issue a Resolution extending the TEPO until further orders of the
Court;
3. After due proceedings, render a Decision which shall include, without limitation:
a. Order Respondents Secretary of Foreign Affairs, following the dispositive portion of Nicolas v.
Romulo, "to forthwith negotiate with the United States representatives for the appropriate
agreement on [environmental guidelines and environmental accountability] under Philippine
authorities as provided in Art. V[] of the VFA ... "
b. Direct Respondents and appropriate agencies to commence administrative, civil, and criminal
proceedings against erring officers and individuals to the full extent of the law, and to make such
proceedings public;
c. Declare that Philippine authorities may exercise primary and exclusive criminal jurisdiction over
erring U.S. personnel under the circumstances of this case;
d. Require Respondents to pay just and reasonable compensation in the settlement of all
meritorious claims for damages caused to the Tubbataha Reef on terms and conditions no less
severe than those applicable to other States, and damages for personal injury or death, if such
had been the case;
e. Direct Respondents to cooperate in providing for the attendance of witnesses and in the
collection and production of evidence, including seizure and delivery of objects connected with
the offenses related to the grounding of the Guardian;
f. Require the authorities of the Philippines and the United States to notify each other of the
disposition of all cases, wherever heard, related to the grounding of the Guardian;
g. Restrain Respondents from proceeding with any purported restoration, repair, salvage or post
salvage plan or plans, including cleanup plans covering the damaged area of the Tubbataha Reef
absent a just settlement approved by the Honorable Court;
h. Require Respondents to engage in stakeholder and LOU consultations in accordance with the
Local Government Code and R.A. 10067;
i. Require Respondent US officials and their representatives to place a deposit to the TRNP Trust
Fund defined under Section 17 of RA 10067 as a bona .fide gesture towards full reparations;
j. Direct Respondents to undertake measures to rehabilitate the areas affected by the grounding
of the Guardian in light of Respondents' experience in the Port Royale grounding in 2009, among
other similar grounding incidents;
k. Require Respondents to regularly publish on a quarterly basis and in the name of transparency
and accountability such environmental damage assessment, valuation, and valuation methods, in
all stages of negotiation;
l. Convene a multisectoral technical working group to provide scientific and technical support to
the TPAMB;
m. Order the Department of Foreign Affairs, Department of National Defense, and the
Department of Environment and Natural Resources to review the Visiting Forces Agreement and
the Mutual Defense Treaty to consider whether their provisions allow for the exercise of erga
omnes rights to a balanced and healthful ecology and for damages which follow from any
violation of those rights;
n. Narrowly tailor the provisions of the Visiting Forces Agreement for purposes of protecting the
damaged areas of TRNP;
o. Declare the grant of immunity found in Article V ("Criminal Jurisdiction") and Article VI of the
Visiting Forces Agreement unconstitutional for violating equal protection and/or for violating the
preemptory norm of nondiscrimination incorporated as part of the law of the land under Section 2,
Article II, of the Philippine Constitution;
p. Allow for continuing discovery measures;
q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs in all other respects; and
4. Provide just and equitable environmental rehabilitation measures and such other reliefs as are
just and equitable under the premises.7 (Underscoring supplied.)
Since only the Philippine respondents filed their comment8 to the petition, petitioners also filed a motion
for early resolution and motion to proceed ex parte against the US respondents. 9
Respondents' Consolidated Comment
In their consolidated comment with opposition to the application for a TEPO and ocular inspection and
production orders, respondents assert that: ( 1) the grounds relied upon for the issuance of a TEPO or
writ of Kalikasan have become fait accompli as the salvage operations on the USS Guardian were
already completed; (2) the petition is defective in form and substance; (3) the petition improperly raises
issues involving the VFA between the Republic of the Philippines and the United States of America; and (
4) the determination of the extent of responsibility of the US Government as regards the damage to the
Tubbataha Reefs rests exdusively with the executive branch.
The Court's Ruling
As a preliminary matter, there is no dispute on the legal standing of petitioners to file the present petition.
Locus standi is "a right of appearance in a court of justice on a given question." 10 Specifically, it is "a
party's personal and substantial interest in a case where he has sustained or will sustain direct injury as a
result" of the act being challenged, and "calls for more than just a generalized grievance."11 However, the
rule on standing is a procedural matter which this Court has relaxed for non-traditional plaintiffs like
ordinary citizens, taxpayers and legislators when the public interest so requires, such as when the subject
matter of the controversy is of transcendental importance, of overreaching significance to society, or of
paramount public interest.12
In the landmark case of Oposa v. Factoran, Jr.,13 we recognized the "public right" of citizens to "a
balanced and healthful ecology which, for the first time in our constitutional history, is solemnly
incorporated in the fundamental law." We declared that the right to a balanced and healthful ecology need
not be written in the Constitution for it is assumed, like other civil and polittcal rights guaranteed in the Bill
of Rights, to exist from the inception of mankind and it is an issue of transcendental importance with
intergenerational implications.1wphi1 Such right carries with it the correlative duty to refrain from
impairing the environment.14
On the novel element in the class suit filed by the petitioners minors in Oposa, this Court ruled that not
only do ordinary citizens have legal standing to sue for the enforcement of environmental rights, they can
do so in representation of their own and future generations. Thus:
Petitioners minors assert that they represent their generation as well as generations yet unborn. We find
no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding
generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be
based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful
ecology is concerned. Such a right, as hereinafter expounded, considers the "rhythm and harmony of
nature." Nature means the created world in its entirety. Such rhythm and harmony indispensably include,
inter alia, the judicious disposition, utilization, 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 a:: well as future
generations. Needless to say, every generation has a responsibility to the next to preserve that rhythm
and harmony for the full 1:njoyment of a balanced and healthful ecology. Put a little differently, the minors'
assertion of their right to a sound environment constitutes, at the same time, the performance of their
obligation to ensure the protection of that right for the generations to come.15 (Emphasis supplied.)
The liberalization of standing first enunciated in Oposa, insofar as it refers to minors and generations yet
unborn, is now enshrined in the Rules which allows the filing of a citizen suit in environmental cases. The
provision on citizen suits in the Rules "collapses the traditional rule on personal and direct interest, on the
principle that humans are stewards of nature."16
Having settled the issue of locus standi, we shall address the more fundamental question of whether this
Court has jurisdiction over the US respondents who did not submit any pleading or manifestation in this
case.
The immunity of the State from suit, known also as the doctrine of sovereign immunity or non-suability of
the State,17 is expressly provided in Article XVI of the 1987 Constitution which states:
Section 3. The State may not be sued without its consent.
In United States of America v. Judge Guinto,18 we discussed the principle of state immunity from suit, as
follows:
The rule that a state may not be sued without its consent, now expressed in Article XVI, Section 3, of the
1987 Constitution, is one of the generally accepted principles of international law that we have adopted as
part of the law of our land under Article II, Section 2. x x x.
Even without such affirmation, we would still be bound by the generally accepted principles of
international law under the doctrine of incorporation. Under this doctrine, as accepted by the majority of
states, such principles are deemed incorporated in the law of every civilized state as a condition and
consequence of its membership in the society of nations. Upon its admission to such society, the state is
automatically obligated to comply with these principles in its relations with other states.
As applied to the local state, the doctrine of state immunity is based on the justification given by Justice
Holmes that ''there can be no legal right against the authority which makes the law on which the right
depends." [Kawanakoa v. Polybank, 205 U.S. 349] There are other practical reasons for the enforcement
of the doctrine. In the case of the foreign state sought to be impleaded in the local jurisdiction, the added
inhibition is expressed in the maxim par in parem, non habet imperium. All states are sovereign equals
and cannot assert jurisdiction over one another. A contrary disposition would, in the language of a
celebrated case, "unduly vex the peace of nations." [De Haber v. Queen of Portugal, 17 Q. B. 171]
While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable
to complaints filed against officials of the state for acts allegedly performed by them in the discharge of
their duties. The rule is that if the judgment against such officials will require the state itself to perform an
affirmative act to satisfy the same,. such as the appropriation of the amount needed to pay the damages
awarded against them, the suit must be regarded as against the state itself although it has not been
formally impleaded. [Garcia v. Chief of Staff, 16 SCRA 120] In such a situation, the state may move to
dismiss the comp.taint on the ground that it has been filed without its consent. 19 (Emphasis supplied.)
Under the American Constitution, the doctrine is expressed in the Eleventh Amendment which reads:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.
In the case of Minucher v. Court of Appeals,20 we further expounded on the immunity of foreign states
from the jurisdiction of local courts, as follows:
The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of
customary international law then closely identified with the personal immunity of a foreign sovereign from
suit and, with the emergence of democratic states, made to attach not just to the person of the head of
state, or his representative, but also distinctly to the state itself in its sovereign capacity. If the acts giving
rise to a suit arc those of a foreign government done by its foreign agent, although not necessarily a
diplomatic personage, but acting in his official capacity, the complaint could be barred by the immunity of
the foreign sovereign from suit without its consent. Suing a representative of a state is believed to be, in
effect, suing the state itself. The proscription is not accorded for the benefit of an individual but for the
State, in whose service he is, under the maxim -par in parem, non habet imperium -that all states are
soverr~ign equals and cannot assert jurisdiction over one another. The implication, in broad terms, is that
if the judgment against an official would rec 1uire the state itself to perform an affirmative act to satisfy the
award, such as the appropriation of the amount needed to pay the damages decreed against him, the suit
must be regarded as being against the state itself, although it has not been formally
impleaded.21(Emphasis supplied.)
In the same case we also mentioned that in the case of diplomatic immunity, the privilege is not an
immunity from the observance of the law of the territorial sovereign or from ensuing legal liability; it is,
rather, an immunity from the exercise of territorial jurisdiction.22
In United States of America v. Judge Guinto,23 one of the consolidated cases therein involved a Filipino
employed at Clark Air Base who was arrested following a buy-bust operation conducted by two officers of
the US Air Force, and was eventually dismissed from his employment when he was charged in court for
violation of R.A. No. 6425. In a complaint for damages filed by the said employee against the military
officers, the latter moved to dismiss the case on the ground that the suit was against the US Government
which had not given its consent. The RTC denied the motion but on a petition for certiorari and prohibition
filed before this Court, we reversed the RTC and dismissed the complaint. We held that petitioners US
military officers were acting in the exercise of their official functions when they conducted the buy-bust
operation against the complainant and thereafter testified against him at his trial. It follows that for
discharging their duties as agents of the United States, they cannot be directly impleaded for acts
imputable to their principal, which has not given its consent to be sued.
This traditional rule of State immunity which exempts a State from being sued in the courts of another
State without the former's consent or waiver has evolved into a restrictive doctrine which distinguishes
sovereign and governmental acts (Jure imperil") from private, commercial and proprietary acts (Jure
gestionis). Under the restrictive rule of State immunity, State immunity extends only to acts Jure imperii.
The restrictive application of State immunity is proper only when the proceedings arise out of commercial
transactions of the foreign sovereign, its commercial activities or economic affairs.24
In Shauf v. Court of Appeals,25 we discussed the limitations of the State immunity principle, thus:
It is a different matter where the public official is made to account in his capacity as such for acts contrary
to law and injurious to the rights of plaintiff. As was clearly set forth by JustiGe Zaldivar in Director of the
Bureau of Telecommunications, et al. vs. Aligaen, etc., et al. : "Inasmuch as the State authorizes only
legal acts by its officers, unauthorized acts of government officials or officers are not acts of the State,
and an action against the officials or officers by one whose rights have been invaded or violated by such
acts, for the protection of his rights, is not a suit against the State within the rule of immunity of the State
from suit. In the same tenor, it has been said that an action at law or suit in equity against a State officer
or the director of a State department on the ground that, while claiming to act for the State, he violates or
invades the personal and property rights of the plaintiff, under an unconstitutional act or under an
assumption of authority which he does not have, is not a suit against the State within the constitutional
provision that the State may not be sued without its consent." The rationale for this ruling is that the
doctrine of state immunity cannot be used as an instrument for perpetrating an injustice.
xxxx
The aforecited authorities are clear on the matter. They state that the doctrine of immunity from suit will
not apply and may not be invoked where the public official is being sued in his private and personal
capacity as an ordinary citizen. The cloak of protection afforded the officers and agents of the government
is removed the moment they are sued in their individual capacity. This situation usually arises where the
public official acts without authority or in excess of the powers vested in him. It is a well-settled principle of
law that a public official may be liable in his personal private capacity for whatever damage he may have
caused by his act done with malice and in bad faith, or beyond the scope of his authority or
jurisdiction.26 (Emphasis supplied.) In this case, the US respondents were sued in their official capacity as
commanding officers of the US Navy who had control and supervision over the USS Guardian and its
crew. The alleged act or omission resulting in the unfortunate grounding of the USS Guardian on the
TRNP was committed while they we:re performing official military duties. Considering that the satisfaction
of a judgment against said officials will require remedial actions and appropriation of funds by the US
government, the suit is deemed to be one against the US itself. The principle of State immunity therefore
bars the exercise of jurisdiction by this Court over the persons of respondents Swift, Rice and Robling.
During the deliberations, Senior Associate Justice Antonio T. Carpio took the position that the conduct of
the US in this case, when its warship entered a restricted area in violation of R.A. No. 10067 and caused
damage to the TRNP reef system, brings the matter within the ambit of Article 31 of the United Nations
Convention on the Law of the Sea (UNCLOS). He explained that 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 latter's internal waters and the territorial sea.
According to Justice Carpio, 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" as codified in UNCLOS, as can be gleaned from previous declarations by former Presidents
Reagan and Clinton, and the US judiciary in the case of United States v. Royal Caribbean Cruise Lines,
Ltd.27
The international law of the sea is generally defined as "a body of treaty rules arid customary norms
governing the uses of the sea, the exploitation of its resources, and the exercise of jurisdiction over
maritime regimes. It is a branch of public international law, regulating the relations of states with respect
to the uses of the oceans."28 The UNCLOS is a multilateral treaty which was opened for signature on
December 10, 1982 at Montego Bay, Jamaica. It was ratified by the Philippines in 1984 but came into
force on November 16, 1994 upon the submission of the 60th ratification.
The UNCLOS is a product of international negotiation that seeks to balance State sovereignty (mare
clausum) and the principle of freedom of the high seas (mare liberum).29 The freedom to use the world's
marine waters is one of the oldest customary principles of international law. 30 The UNCLOS gives to the
coastal State sovereign rights in varying degrees over the different zones of the sea which are: 1) internal
waters, 2) territorial sea, 3) contiguous zone, 4) exclusive economic zone, and 5) the high seas. It also
gives coastal States more or less jurisdiction over foreign vessels depending on where the vessel is
located.31
Insofar as the internal waters and territorial sea is concerned, the Coastal State exercises sovereignty,
subject to the UNCLOS and other rules of international law. Such sovereignty extends to the air space
over the territorial sea as well as to its bed and subsoil.32
In the case of warships,33 as pointed out by Justice Carpio, they continue to enjoy sovereign immunity
subject to the following exceptions:
Article 30
Non-compliance by warships with the laws and regulations of the coastal State
If any warship does not comply with the laws and regulations of the coastal State concerning passage
through the territorial sea and disregards any request for compliance therewith which is made to it, the
coastal State may require it to leave the territorial sea immediately.
Article 31
Responsibility of the flag State for damage caused by a warship
or other government ship operated for non-commercial purposes
The flag State shall bear international responsibility for any loss or damage to the coastal State resulting
from the non-compliance by a warship or other government ship operated for non-commercial purposes
with the laws and regulations of the coastal State concerning passage through the territorial sea or with
the provisions of this Convention or other rules of international law.
Article 32
Immunities of warships and other government ships operated for non-commercial purposes
With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this
Convention affects the immunities of warships and other government ships operated for non-commercial
purposes. (Emphasis supplied.) A foreign warship's unauthorized entry into our internal waters with
resulting damage to marine resources is one situation in which the above provisions may apply. But what
if the offending warship is a non-party to the UNCLOS, as in this case, the US?
An overwhelming majority - over 80% -- of nation states are now members of UNCLOS, but despite this
the US, the world's leading maritime power, has not ratified it.
While the Reagan administration was instrumental in UNCLOS' negotiation and drafting, the U.S.
delegation ultimately voted against and refrained from signing it due to concerns over deep seabed
mining technology transfer provisions contained in Part XI. In a remarkable, multilateral effort to induce
U.S. membership, the bulk of UNCLOS member states cooperated over the succeeding decade to revise
the objection.able provisions. The revisions satisfied the Clinton administration, which signed the revised
Part XI implementing agreement in 1994. In the fall of 1994, President Clinton transmitted UNCLOS and
the Part XI implementing agreement to the Senate requesting its advice and consent. Despite consistent
support from President Clinton, each of his successors, and an ideologically diverse array of
stakeholders, the Senate has since withheld the consent required for the President to internationally bind
the United States to UNCLOS.
While UNCLOS cleared the Senate Foreign Relations Committee (SFRC) during the 108th and 110th
Congresses, its progress continues to be hamstrung by significant pockets of political ambivalence over
U.S. participation in international institutions. Most recently, 111 th Congress SFRC Chairman Senator
John Kerry included "voting out" UNCLOS for full Senate consideration among his highest priorities. This
did not occur, and no Senate action has been taken on UNCLOS by the 112th Congress. 34
Justice Carpio invited our attention to the policy statement given by President Reagan on March 10, 1983
that the US will "recognize the rights of the other , states in the waters off their coasts, as reflected in the
convention [UNCLOS], so long as the rights and freedom of the United States and others under
international law are recognized by such coastal states", and President Clinton's reiteration of the US
policy "to act in a manner consistent with its [UNCLOS] provisions relating to traditional uses of the
oceans and to encourage other countries to do likewise." Since Article 31 relates to the "traditional uses
of the oceans," and "if under its policy, the US 'recognize[s] the rights of the other states in the waters off
their coasts,"' Justice Carpio postulates that "there is more reason to expect it to recognize the rights of
other states in their internal waters, such as the Sulu Sea in this case."
As to the non-ratification by the US, Justice Carpio emphasizes that "the US' refusal to join the UN CLOS
was centered on its disagreement with UN CLOS' regime of deep seabed mining (Part XI) which
considers the oceans and deep seabed commonly owned by mankind," pointing out that such "has
nothing to do with its [the US'] acceptance of customary international rules on navigation."
It may be mentioned that even the US Navy Judge Advocate General's Corps publicly endorses the
ratification of the UNCLOS, as shown by the following statement posted on its official website:
The Convention is in the national interest of the United States because it establishes stable maritime
zones, including a maximum outer limit for territorial seas; codifies innocent passage, transit passage,
and archipelagic sea lanes passage rights; works against "jurisdictiomtl creep" by preventing coastal
nations from expanding their own maritime zones; and reaffirms sovereign immunity of warships,
auxiliaries anJ government aircraft.
xxxx
Economically, accession to the Convention would support our national interests by enhancing the ability
of the US to assert its sovereign rights over the resources of one of the largest continental shelves in the
world. Further, it is the Law of the Sea Convention that first established the concept of a maritime
Exclusive Economic Zone out to 200 nautical miles, and recognized the rights of coastal states to
conserve and manage the natural resources in this Zone.35
We fully concur with Justice Carpio's view that 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. We thus expect the US to bear "international responsibility" under Art. 31 in connection with the USS
Guardian grounding which adversely affected the Tubbataha reefs. Indeed, it is difficult to imagine that
our long-time ally and trading partner, which has been actively supporting the country's efforts to preserve
our vital marine resources, would shirk from its obligation to compensate the damage caused by its
warship while transiting our internal waters. Much less can we comprehend a Government exercising
leadership in international affairs, unwilling to comply with the UNCLOS directive for all nations to
cooperate in the global task to protect and preserve the marine environment as provided in Article 197,
viz:
Article 197
Cooperation on a global or regional basis
States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through
competent international organizations, in formulating and elaborating international rules, standards and
recommended practices and procedures consistent with this Convention, for the protection and
preservation of the marine environment, taking into account characteristic regional features.
In fine, the relevance of UNCLOS provisions to the present controversy is beyond dispute. Although the
said treaty upholds the immunity of warships from the jurisdiction of Coastal States while navigating
the.latter's territorial sea, the flag States shall be required to leave the territorial '::;ea immediately if they
flout the laws and regulations of the Coastal State, and they will be liable for damages caused by their
warships or any other government vessel operated for non-commercial purposes under Article 31.
Petitioners argue that there is a waiver of immunity from suit found in the VFA. Likewise, they invoke
federal statutes in the US under which agencies of the US have statutorily waived their immunity to any
action. Even under the common law tort claims, petitioners asseverate that the US respondents are liable
for negligence, trespass and nuisance.
We are not persuaded.
The VFA is an agreement which defines the treatment of United States troops and personnel visiting the
Philippines to promote "common security interests" between the US and the Philippines in the region. It
provides for the guidelines to govern such visits of military personnel, and further defines the rights of the
United States and the Philippine government in the matter of criminal jurisdiction, movement of vessel
and aircraft, importation and exportation of equipment, materials and supplies. 36 The invocation of US
federal tort laws and even common law is thus improper considering that it is the VF A 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 VF A pertains only to criminal jurisdiction and not to
special civil actions such as the present petition for issuance of a writ of Kalikasan. In fact, it can be
inferred from Section 17, Rule 7 of the Rules that a criminal case against a person charged with a
violation of an environmental law is to be filed separately:
SEC. 17. Institution of separate actions.-The filing of a petition for the issuance of the writ of kalikasan
shall not preclude the filing of separate civil, criminal or administrative actions.
In any case, it is our considered view that a ruling on the application or non-application of criminal
jurisdiction provisions of the VF A to 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. We also
find it unnecessary at this point to determine whether such waiver of State immunity is indeed absolute. In
the same vein, we cannot grant damages which have resulted from the violation of environmental laws.
The Rules allows the recovery of damages, including the collection of administrative fines under R.A. No.
10067, in a separate civil suit or that deemed instituted with the criminal action charging the same
violation of an environmental law.37
Section 15, Rule 7 enumerates the reliefs which may be granted in a petition for issuance of a writ of
Kalikasan, to wit:
SEC. 15. Judgment.-Within sixty (60) days from the time the petition is submitted for decision, the court
shall render judgment granting or denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist from committing acts or neglecting the
performance of a duty in violation of environmental laws resulting in environmental destruction or
damage;
(b) Directing the respondent public official, govemment agency, private person or entity to protect,
preserve, rehabilitate or restore the environment;
(c) Directing the respondent public official, government agency, private person or entity to monitor
strict compliance with the decision and orders of the court;
(d) Directing the respondent public official, government agency, or private person or entity to
make periodic reports on the execution of the final judgment; and
(e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology or
to the protection, preservation, rehabilitation or restoration of the environment, except the award
of damages to individual petitioners. (Emphasis supplied.)
We agree with respondents (Philippine officials) in asserting that this petition has become moot in the
sense that the salvage operation sought to be enjoined or restrained had already been accomplished
when petitioners sought recourse from this Court. But insofar as the directives to Philippine respondents
to protect and rehabilitate the coral reef stn icture and marine habitat adversely affected by the grounding
incident are concerned, petitioners are entitled to these reliefs notwithstanding the completion of the
removal of the USS Guardian from the coral reef. However, we are mindful of the fact that the US and
Philippine governments both expressed readiness to negotiate and discuss the matter of compensation
for the damage caused by the USS Guardian. The US Embassy has also declared it is closely
coordinating with local scientists and experts in assessing the extent of the damage and appropriate
methods of rehabilitation.
Exploring avenues for settlement of environmental cases is not proscribed by the Rules. As can be
gleaned from the following provisions, mediation and settlement are available for the consideration of the
parties, and which dispute resolution methods are encouraged by the court, to wit:
RULE3
xxxx
SEC. 3. Referral to mediation.-At the start of the pre-trial conference, the court shall inquire from the
parties if they have settled the dispute; otherwise, the court shall immediately refer the parties or their
counsel, if authorized by their clients, to the Philippine Mediation Center (PMC) unit for purposes of
mediation. If not available, the court shall refer the case to the clerk of court or legal researcher for
mediation.
Mediation must be conducted within a non-extendible period of thirty (30) days from receipt of notice of
referral to mediation.
The mediation report must be submitted within ten (10) days from the expiration of the 30-day period.
SEC. 4. Preliminary conference.-If mediation fails, the court will schedule the continuance of the pre-trial.
Before the scheduled date of continuance, the court may refer the case to the branch clerk of court for a
preliminary conference for the following purposes:
(a) To assist the parties in reaching a settlement;
xxxx
SEC. 5. Pre-trial conference; consent decree.-The judge shall put the parties and their counsels under
oath, and they shall remain under oath in all pre-trial conferences.
The judge shall exert best efforts to persuade the parties to arrive at a settlement of the dispute. The
judge may issue a consent decree approving the agreement between the parties in accordance with law,
morals, public order and public policy to protect the right of the people to a balanced and healthful
ecology.
xxxx
SEC. 10. Efforts to settle.- The court shall endeavor to make the parties to agree to compromise or settle
in accordance with law at any stage of the proceedings before rendition of judgment. (Underscoring
supplied.)
The Court takes judicial notice of a similar incident in 2009 when a guided-missile cruiser, the USS Port
Royal, ran aground about half a mile off the Honolulu Airport Reef Runway and remained stuck for four
days. After spending $6.5 million restoring the coral reef, the US government was reported to have paid
the State of Hawaii $8.5 million in settlement over coral reef damage caused by the grounding. 38
To underscore that the US government is prepared to pay appropriate compensation for the damage
caused by the USS Guardian grounding, the US Embassy in the Philippines has announced the formation
of a US interdisciplinary scientific team which will "initiate discussions with the Government of the
Philippines to review coral reef rehabilitation options in Tubbataha, based on assessments by Philippine-
based marine scientists." The US team intends to "help assess damage and remediation options, in
coordination with the Tubbataha Management Office, appropriate Philippine government entities, non-
governmental organizations, and scientific experts from Philippine universities." 39
A rehabilitation or restoration program to be implemented at the cost of the violator is also a major relief
that may be obtained under a judgment rendered in a citizens' suit under the Rules, viz:
RULES
SECTION 1. Reliefs in a citizen suit.-If warranted, the court may grant to the plaintiff proper reliefs which
shall include the protection, preservation or rehabilitation of the environment and the payment of
attorney's fees, costs of suit and other litigation expenses. It may also require the violator to submit a
program of rehabilitation or restoration of the environment, the costs of which shall be borne by the
violator, or to contribute to a special trust fund for that purpose subject to the control of the court.1wphi1
In the light of the foregoing, the Court defers to the Executive Branch on the matter of compensation and
rehabilitation measures through diplomatic channels. Resolution of these issues impinges on our relations
with another State in the context of common security interests under the VFA. It is settled that "[t]he
conduct of the foreign relations of our government is committed by the Constitution to the executive and
legislative-"the political" --departments of the government, and the propriety of what may be done in the
exercise of this political power is not subject to judicial inquiry or decision."40
On the other hand, we cannot grant the additional reliefs prayed for in the petition to order a review of the
VFA and to nullify certain immunity provisions thereof.
As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora, 41 the VFA was duly concurred
in by the Philippine Senate and has been recognized as a treaty by the United States as attested and
certified by the duly authorized representative of the United States government. The VF A being a valid
and binding agreement, the parties are required as a matter of international law to abide by its terms and
provisions.42 The present petition under the Rules is not the proper remedy to assail the constitutionality
of its provisions. WHEREFORE, the petition for the issuance of the privilege of the Writ of Kalikasan is
hereby DENIED.
No pronouncement as to costs.
SO ORDERED.
MARTIN S. VILLARAMA, JR.

Associate Justice
WE CONCUR:
See Concurring Opinion

MARIA LOURDES P. A. SERENO
Chief Justice
ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice
TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

MARIANO C. DEL CASTILLO JOSE PORTUGAL PEREZ

(On official leave)

BIENVENIDO L. REYES
JOSE CATRAL MENDOZA*
Associate Justice
Associate Justice
See Separate Concurring Opinion
ESTELA M. PERLAS-BERNABE
MARVIC M.V.F. LEONEN
Associate Justice
Associate Justice
(No Part)
FRANCIS H. JARDELEZA**
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the 1987 Constitution, it is hereby certified that the conclusions in
the above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court.

Chief Justice
Footnotes
* On official leave.
** No part.
1 T ubbataha Reefs Natural Park - <http://tubbatahareef org>.
2 Id.
3"AN ACT ESTABLISHING THE TUBBATAHA REEFS NATURAL PARK IN THE PROVINCE OF
PALAWAN AS A PROTECTED AREA UNDER THE NIPAS ACT (R.A. 7586) AND THE
STRATEGIC ENVIRONMENTAL PLAN (SEP) FOR PALAWAN ACT (R.A. 7611), PROVIDING
FOR ITS MANAGEMENT AND FOR OTHER PURPOSES."
4 Rollo, pp. 194-199.
5< http://manila.usembassy.gov/pressphotoreleases2013/navy-commander-expresses-regret-
concerning-uss-guardian-grounding.html>.
6"Joint Statement Between The Philippines And The United States On The USS Guardian
Grounding On Tubbatata Reef," February 5, 2013. Accessed. at US Embassy website -
<http://manila.usembassy.gov/jointstatementguardiantubbataha.html>.
7 Rollo, pp. 89-92.
8 Id. at 156-191. In a letter dated 27 May 2013, the DFA's Office of Legal Affairs informed this
Court that it has received from the Embassy of the United States the Notice sent by this Court,
with a request to return the same. It said that the US Embassy "asserts that it is not an agent for
the service of process upon the individuals named in court documents, and that the transmission
of the Court documents should have been done through diplomatic channels." (Id. at 255.)
9 Id. at 215-247.
10 Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011, 641 SCRA 244, 254, citing David
v. Macapagal-Arroyo, 522 Phil. 705, 755 (2006).
11Id., citing Jumamil v. Cafe, 507 Phil. 455, 465 (2005), citing Integrated Bar of the Philippines v.
Zamora, 392 Phil. 6I8, 632-633 (2000).
12Biraogo v. Philippine Truth Commission of2010, G.R. Nos. 192935 & 193036, December 7,
2010, 637 SCRA 78, 151, citing Social Justice Society (SJS) v. Dangerous Drugs Board, et al.,
591 Phil. 393, 404 (2008); Tatad v. Secretary of the Department of Energy, 346 Phil. 321 (1997)
and De Guia v. COMELEC, G.R. No. 104712, May 6, 1992, 208 SCRA 420, 422.
13 G.R. No. 101083, July 30, 1993, 224 SCRA 792.
14 Id. at 804-805.
15 Id. at 802-803.
16 See ANNOTATION TO THE RULES OF PROCEDURE FOR ENVIRONMENTAL CASES ..
17 Air Transportation Office v. Ramos, G.R. No. 159402, February 23, 2011, 644 SCRA 36, 41.
18 261 Phil. 777 (1990).
19 Id. at 790-792.
20 445 Phil. 250 (2003).
21 Id. at 269-270. Citations omitted.
22 Id. at 268, citing J.L. Brierly, "The Law of Nations," Oxford University Press, 6th Edition, 1963,
p. 244.
23 Supra note 18, at 788-789 & 797.
24 United States of America v. Ruiz, 221 Phil. 179, 182-183 & 184 (1985).
25 G.R. No. 90314, November 27, 1990, 191 SCRA 713.
26 Id. at 727-728.
27 24 F Supp. 2d 155, 159 (D.P.R. 1997).
28 Merlin M. Magallona, A Primer on the Law of the Sea, 1997, p. 1.
29Bertrand Theodor L. Santos, "Untangling a Tangled Net of Confusion: Reconciling the

Philippine Fishery Poaching Law and the UNCLOS' World Bulletin, Vol. 18: 83-116 (July-
December 2002), p. 96.
30Anne Bardin, "Coastal State's Jurisdiction Over Foreign Vessels" 14 Pace Int'!. Rev. 27, 28
(2002).
31 Id. at 29.
32 Art. 2, UNCLOS.
33Art. 29 of UNCLOS defines warship as "a ship belonging to the armed forces of a State bearing
the external marks distinguishing such ships of its nationality, under the command of an officer
duly commissioned by the government of the State and whose name appears in the appropriate
service list or its equivalent, and manned by a crew which is under regular armed forces
discipline."
34 Commander Robert C. "Rock" De Tolve, JAGC, USN, "At What Cost? Americas UNCLOS
Allergy in the Time of 'Lav.fare'", 61 Naval L. Rev. 1, 3 (2012).
35 <http://www.jag.navy.mil/organizationlcode10lawofthesea.htm>.
36 See BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora, 396 Phil. 623, 652 (2000).
37 Rule 10, RULES OF PROCEDURE FOR ENVIRONMENTAL CASES.
38USS Port Royal (CG73)" - <http://navysite.de/cg/cg73.html>; "USS Port Royal Returns to

Homeport", Navy Military Home Page, Story Number NNS0902 l l-02 Release Date: 2/11/2009
6:00 AM -<http://www.navymillsubmit/display.asp?story_id=42502>; "Navy, state reach
settlement on USS Port Royal damage'', posted Feb. 05, 2011 8:26 AM -
<http:/!www.hawaiinewsnow.com!story/13974224/navystate-reach-settlement-on-uss-port-royal-
reef-damage>.
39 <http://manila.usembassy.gov/usgtargetedassistancetubbataha. html>.
40Vinuya v. Romulo, G.R. No. 162230, April 28, 2010, 619 SCRA 533, 559, citing Detjen v.
Central Leather Co., 246 U.S. 297, 302 (1918).
41 Supra note 36.
42 Nicolas v. Secretary Romulo, et al., 598 Phil. 262. 280 & 285.
The Lawphil Project - Arellano Law Foundation

Arigo vs Swift
Case Digest GR 206510 Sept 14, 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, theUS
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.
Relevant Laws and Jurisprudence

Hide
On States Immunity From Suit
States Immunity from Suit Extends to its Officials (Garcia vs Chief of Staff, 1966)
While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable to
complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties.
The rule is that if the judgment against such officials will require the state itself to perform an affirmative act to
satisfy the same, such as the appropriation of the amount needed to pay the damages awarded against them, the suit
must be regarded as against the state itself although it has not been formally impleaded. In such a situation, the state
may move to dismiss the complaint on the ground that it has been filed without its consent.
Exception to the Doctrine of States Immunity from Suit (Shauf vs CA, 1990)
Article 30, UNCLOS: Non-compliance by warships with the laws and regulations of the coastal State
Article 31, UNCLOS: Responsibility of the flag State for damage caused by a warship or other government ship
operated for non-commercial purposes
Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 207257 February 3, 2015
HON. RAMON JESUS P. PAJE, in his capacity as SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES (DENR), Petitioner,
vs.
HON. TEODORO A. CASIO, HON. RAYMOND V. PALATINO, HON. RAFAEL V. MARIANO, HON. EMERENCIANA A. DE JESUS,
CLEMENTE G. BAUTISTA, JR., HON. ROLEN C. PAULINO, HON. EDUARDO PIANO, HON. JAMES DE LOS REYES, HON.
AQUILINO Y. CORTEZ, JR., HON. SARAH LUGERNA LIPUMANO-GARCIA, NORAIDA VELARMINO, BIANCA CHRISTINE
GAMBOA ESPINOS, CHARO SIMONS, GREGORIO LLORCA MAGDARAOG, RUBELH PERALTA, ALEX CORPUS HERMOSO,
RODOLFO SAMBAJON, REV. FR. GERARDO GREGORIO P. JORGE, CARLITO A. BALOY, OFELIA D. PABLO, MARIO
ESQUILLO, ELLE LATINAZO, EVANGELINE Q. RODRIGUEZ, JOHN CARLO DELOS REYES, Respondents.
x-----------------------x
G.R. No. 207276
REDONDO PENINSULA ENERGY, INC., Petitioner,

vs.
CLEMENTE G. BAUTISTA, JR., HON. ROLEN C. PAULINO, HON. EDUARDO PIANO, HON. JAMES DE LOS REYES, HON.
GAMBOA ESPINOS, CHARO SIMONS, GREGORIO LLORCA MAGDARAOG, RUBELH PERALTA, ALEX CORPUS HERMOSO,
RODOLFO SAMBAJON, REV. FR. GERARDO GREGORIO P. JORGE, CARLITO A. BALOY, OFELIA D. PABLO, MARIO
ESQUILLO, ELLE LATINAZO, EVANGELINE Q. RODRIGUEZ, JOHN CARLO DELOS REYES, RAMON JESUS P. PAJE, in his
capacity as SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES AND SUBIC BAY
METROPOLITAN AUTHORITY, Respondents.
x-----------------------x
G.R. No. 207282

HON. TEODORO A. CASIO, HON. RAYMOND V. PALATINO, HON. EMERENCIANA A. DE JESUS, CLEMENTE G. BAUTISTA,
JR., HON. RAFAEL V. MARIANO, HON. ROLEN C. PAULINO, HON. EDUARDO PIANO, HON. JAMES DE LOS REYES, HON.
GAMBOA ESPINOS, CHARO SIMONS, GREGORIO LLORCA MAGDARAOG, RUBELH PERALTA, ALEX CORPUS HERMOSA,
RODOLFO SAMBAJON, ET AL., Petitioners,
vs.
RAMON JESUS P. PAJE in his capacity as SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES, SUBIC BAY METROPOLITAN AUTHORITY, AND REDONDO PENINSULA ENERGY, INC., Respondents.
x-----------------------x
G.R. No. 207366
SUBIC BAY METROPOLITAN AUTHORITY, Petitioner,

vs.
HON. ROLEN C. PAULINO, HON EDUARDO PIANO, HON. JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ, JR., HON.
SARAH LUGERNA LIPUMANOGARCIA, NORAIDA VELARMINO, BIANCA CHRISTINE GAMBOA, GREGORIO LLORCA
MAGDARAOG, RUBELHPERALTA, ALEX CORPUS HERMOSO, RODOLFO SAMBAJON, REV. FR. GERARDO GREGORIO P.
JORGE, CARLITO A. BALOY, OFELIA D. PABLO, MARIO ESQUILLO, ELLELATINAZO, EV ANGELINE Q. RODRIGUEZ, JOHN
CARLO DELOS REYES, HON. RAMON JESUS P. PAJE, in his capacity as SECRETARY OF THE DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES AND REDONDO PENINSULA ENERGY, INC.,Respondents.
CONCURRING OPINION
VELASCO, JR., J.:
I concur with the well-crafted ponencia of Justice Mariano C. Del Castillo. I will, however, further elucidate on the procedural issues
raised by the indefatigable Justice Marvic M.V.F. Leonen. Justice Leonen posits that a petition for a writ of kalikasan is not the proper
remedy in the instant proceedings since what the petitioners in G.R. No. 207282 assail is the propriety of the issuance and subsequent
amendment of the ECCs by DENR for a project that has yet to be implemented. He argues that the novel action is inapplicable even
more so to projects whose ECCs are yet to be issued or can still be challenged through administrative review processes. He concludes
that the extraordinary initiatory petition does not subsume and is not a substitute for "all remedies that can contribute to the protection of
communities and their environment." While the good Justice did not specifically mention what the other available remedies are,
certiorari under Rule 65 easily comes to mind as one such remedy.
I beg to disagree. The special civil action for a writ of kalikasan under Rule 7 of the Rules of Procedure for Environmental Cases (RPEC
for brevity) is, I submit, the best available and proper remedy for petitioners Casifio, et al.
As distinguished from other available remedies in the ordinary rules of court, the writ of kalikasan is designed for a narrow but special
purpose: to accord a stronger protection for environmental rights, aiming, among others, to provide a speedy and effective resolution of
a case involving the violation of one's constitutional right to a healthful and balanced ecology. As a matter of fact, by explicit directive
from the Court, the RPEC are SPECIAL RULES crafted precisely to govern environmental cases. On the other hand, the "remedies that
can contribute to the protection of communities and their environment" alluded to in Justice Leonens dissent clearly form part of the
Rules of Court which by express provision of the special rules for environmental cases "shall apply in a suppletory manner" under
Section 2 of Rule 22. Suppletory means "supplying deficiencies." It is apparent that there is no vacuum in the special rules on the legal
remedy on unlawful acts or omission concerning environmental damage since precisely Rule 7 on the writ of kalikasan encompasses all
conceivable situations of this nature.
As a potent and effective tool for environmental protection and preservation, Rule 7, Section l of A.M. No. 09-6-8-SC, or the RPEC,
reads:
SEC. 1. Nature of the writ. The writ [of kalikasan] 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 constitutionalright 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.
Availment of the kalikasanwrit would, therefore, be proper if the following requisites concur in a given case:
1. that there is an actual or threatened violation of the constitutional right to a balanced and healthful ecology;
2. the actual or threatened violation is due to an unlawful act or omission of a public official or employee, or private
individual or entity;
3. the situation in the ground involves an environmental damage of such magnitude as to prejudice the life, health or
property of inhabitants in two or more cities or provinces.
Perusing the four corners of the petition in G.R. No. 207282, it can readily be seen that all the requisites are satisfactorily met.
There is, apropos the first requisite, allegations of actual or threatened violation of the constitutional right to a balanced and healthful
ecology, as follows:
Environmental Impact and

Threatened Damage to the
Environment and Public Health
Acid Rain
35. According to RP Energys Environmental Impact Statement for its proposed 2 x 150 MW Coal-Fired Thermal Power Plant Project,
acid rain may occur in the combustion of coal, to wit -
xxxx
During the operation phase, combustion ofcoal will result in emissions of particulates SOx and NOx. This may contribute to the
occurrence of acid rain due to elevated SO2 levels inthe atmosphere. High levels of NO2 emissions may give rise to health problems
for residents within the impact area.
xxxx
Asthma Attacks
36. The same EPRMP mentioned the incidence of asthma attacks as result of power plant operations, to wit
xxxx
The incidence of asthma attacks among residents in the vicinity of the project site may increase due to exposure to suspended
particulates from plant operations.
xxxx
37. The respondents witness, Junisse Mercado, the Project Director of GHD, RP Energys project Consultant engaged to conduct the
environmental impact assessments, cannotalso make certain that despite the mitigation and the lower emissions of the Proposed
Project, no incidence of asthma will occur within the project site.
38. RP Energy has not made a study of the existing level of asthma incidence in the affected area, despite knowledge of secondary
data that the leading cause of morbidity in the area are acute respiratory diseases.
Air Impact
39. Air quality impact is (sic) exists notonly in the vicinity of the Project Site but to surroundings(sic) areas, particularly contiguous local
government units as well.
40. In the air dispersion modeling of the 2012 EPRMP for the expansion of the Coal Fired Power Plant, among those identified as a
discrete receptor for the modeling is the Olongapo City Poblacion.
41. The results of the air dispersionmodeling study show that upon upset conditions, there exists deviation from normal conditions in
relation to the extent of emission and pollution, even in receptors as far as the Olongapo City Poblacion, which is an area and local
government unit outside the Project Site.
42. The possibility of upset conditionsduring plant operations are also likewise not denied, in which increased SOx and NOx emissions
may occur.1 (citations omitted)
xxxx
57. The SBMA Social Acceptability Consultations also included the assessment of different experts in variousfields as to the potential
effects of the Project. x x x
58. Based on the SBMA Final Report on the above mentioned consultations, the three experts shared the view, to wit
xxxx
x x x the conditions were not present to merit the operation of a coal-fired power plant, and to pursue and carry out the project with
confidence and assurance that the natural assets and ecosystems withinthe Freeport area would not be unduly compromised, or that
irreversible damage would not occur and that the threats to the flora and fauna within the immediate community and its surroundings
would be adequately addressed.
The three experts were also of the same opinion that the proposed coal plant project would pose a wide range of negative impacts on
the environment, the ecosystems and human population within the impact zone.
xxxx
The specialists also discussed the potential effects of an operational coal-fired power plant to its environs and the community therein.
Primary among these were the following:
i. Formation of acid rain, which would adversely affect the trees and vegetation in the area which, in turn, would
diminish forest cover. The acid rain would also apparently worsen the acidity of the soil in the Freeport.
ii. Warming and acidification ofthe seawater of the bay, resulting in the bioaccumulation of contaminants and toxic
materials which would eventually lead to the overall reduction of marine productivity.
iii. Discharge of pollutants such as Nitrous Oxide, Sodium Oxide, Ozone and other heavy metals such as mercury and
lead tothe surrounding region, which would adversely affect the health of the populace in the vicinity.2
The second requisite, i.e., that the actual or threatened violation is due to the unlawful act or omission of a public official or employee or
private individual or entity, is deduciblefrom the ensuing allegations:
a. The environmental compliance certificate was issued and the lease and development agreement was entered upon
for the construction and operation of RP Energys 1x300 MW coal-fired power plant without satisfying the certification
precondition requirement under Sec. 59 of Republic Act No. 8371 or the indigenous peoples rights act and its
implementing rules and regulations;
b. The environmental compliance certificate was issued and the lease and development agreement was entered upon
for the construction and operation of the power plant without the prior approval of the Sanggunian concerned, pursuant
to Secs. 26 and 27 of the Local Government Code;
c. Sec. 8.3 of DENR Administrative Order 2003-30 allowing amendments of environmental compliance certificates is
null and void for being enacted ultra vires;
d. Prescinding from the nullity of Sec. 8.3 of DENR Administrative Order 2003-30, all amendments to RP Energys
Environmental Compliance Certificate for the construction and operation of a 2 x 150 MW coal-fired power plant are
null and void.3
Specifically, the unlawful acts or omissions are:
1. Failure to comply with the certification precondition requirement under Sections 9 and 59 of Republic Act No. 8371 or
the Indigenous Peoples Rights Actand its implementing rules and regulations;
2. Non-compliance with the requisite approval of the Sanggunian Pambayanpursuant to Sections 26 and 27 of the
Local Government Code; and
3. Violation of Section 8.3 ofDENR Administrative Order 2003-30 on environmental compliance certificate.
All the alleged unlawful acts or omissions were averred to be committed by public and private respondents. The petition impleads the
DENR, the Subic Bay Metropolitan Authority and the project proponent.
Thus, the second requisite was satisfied.
The estimated range of the feared damage, as clearly set forth in the petition, covers the provinces of Bataan and Zambales,
specifically the municipalities and city mentioned therein, and thus addressing the requisite territorial requirement.
The petition avers:
121. The matter is thus of extreme urgency that, unless immediately restrained, will inevitablycause damage to the environment, the
inhabitants of the provinces of Zambales and Bataan, particularly the municipalities of Subic, Zambales, Hermosa and Morong, Bataan
and the City of Olongapo, Zambales including the herein Petitioners who will all suffer grave injustice and irreparable injury, particularly
in proceeding with construction and operation of the Coal-Fired Power Plant in the absence of compliance with the LocalGovernment
Codes consultation and approval requirements under Sec. 26 and 27, Sec. 59 of R.A. No. 8371s requiring an NCIP Certification prior
to the issuance of permits or licenses by government agencies and violating the restrictions imposed in its original ECC. 4
Having satisfied all the requirements under the special rules, then Rule 7 on the writ of kalikasanis beyond cavil applicable and presents
itself as the best available remedy considering the facts of the case and the circumstances of the parties.
Petition for Issuance of Writ of Kalikasan

vis--vis Special Civil Action for Certiorari
Anent Justice Leonens argument thatthere are other "remedies that can contribute to the protection of communities and their
environment" other than Rule 7 of RPEC, doubtless referringto a Rule 65 petition, allow me to state in disagreement that there are
instances when the act or omission of a public official or employee complained of will ultimately result in the infringement of the basic
right to a healthful and balanced ecology. And said unlawful act or omission would invariably constitute grave abuse of discretion which,
ordinarily, could beaddressed by the corrective hand of certiorariunder Rule 65. In those cases, a petition for writ of kalikasan would still
be the superior remedy as in the present controversy, crafted as it were precisely to address and meet head-on such situations. Put a
bit differently, in proceedings involving enforcement or violation of environmental laws, where arbitrariness or caprice is ascribed to a
public official, the sharper weapon to correct the wrong would be a suit for the issuance of the kalikasan writ.
Prior to the effectivity of the RPECwhich, inter alia, introduced the writ of kalikasan, this Court entertained cases involving attacks on
ECCs via a Rule 65 petition5 which exacts the exhaustion of administrative remedies as condition sine qua nonbefore redress from the
courts may be had.
Following the ordinary rules eventually led to several procedural difficulties in the litigation of environmental cases, as experienced by
practitioners, concerned government agencies, peoples organizations, nongovernmental organizations, corporations, and public-
interest groups,6 more particularly with respect to locus standi, fees and preconditions. These difficulties signalled the pressing need to
make accessible a more simple and expeditious relief to parties seeking the protection not only of their right to life but also the
protection of the countrys remaining and rapidly deteriorating natural resources from further destruction. Hence, the RPEC. With its
formulation, the Court sought to address procedural concerns peculiar to environmental cases, 7 taking into consideration the imperative
of prompt relief or protection where the impending damage to the environment is of a grave and serious degree.Thus, the birth of the
writ of kalikasan, an extraordinary remedy especially engineered to deal with environmental damages, or threats thereof, that transcend
political and territorial boundaries.8
The advent of A.M. No. 09-6-8-SC to be sure brought about significant changes in the procedural rules that apply to environmental
cases. The differences on eight (8) areas between a Rule 65 certioraripetition and Rule 7 kalikasanpetition may be stated as follows:
1. Subject matter. Since its subject matter is any "unlawful act or omission," a Rule 7 kalikasanpetition is broad enough
to correct any act taken without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or
excess of jurisdiction which is the subject matter of a Rule 65 certiorari petition. Any form of abuse of discretion as long
as it constitutes an unlawful act or omission involving the environment can be subject of a Rule 7 kalikasan petition. A
Rule 65 petition, on the other hand, requires the abuse of discretion to be "grave." Ergo,a subject matter which
ordinarily cannot properly be subjectof a certiorari petition can be the subject of a kalikasan petition.
2. Who may file. Rule 7 has liberalized the rule on locus standi, such that availment of the writ of kalikasan is open to a
broad range of suitors, to include even an entity authorized by law, peoples organization, or any public interest group
accredited by or registered with any government agency, on behalf of persons whose right to a balanced and healthful
ecology is violated or threatened to be violated. Rule 65 allows only the aggrieved person to be the petitioner.
3. Respondent. The respondent in a Rule 65 petition is only the government or its officers, unlike in a kalikasan petition
where the respondent may be a private individual or entity.
4. Exemption from docket fees. The kalikasanpetition is exempt from docket fees, unlike in a Rule 65 petition. Rule 7 of
RPEC has pared down the usually burdensome litigation expenses. 5. Venue. The certiorari petition can be filed with
(a) the RTC exercising jurisdiction over the territory where the act was committed; (b) the Court of Appeals; and (c) the
Supreme Court. Given the magnitude of the damage, the kalikasanpetition can be filed directly with the Court of
Appeals or the Supreme Court.The direct filing of a kalikasan petition will prune case delay.
6. Exhaustion of administrative remedies. This doctrine generally applies to a certiorari petition, unlike in a kalikasan
petition.
7. Period to file. An aggrieved party has 60 days from notice of judgment or denial of a motion for reconsideration to file
a certiorari petition, while a kalikasanpetition is not subject to such limiting time lines.
8. Discovery measures. In a certiorari petition, discovery measures are not available unlike in a kalikasan petition.
Resort to these measures will abbreviate proceedings.
It is clear as day that a kalikasan petition provides more ample advantages to a suitor than a Rule 65 petition for certiorari.
Taking into consideration the provisions of Rule 65 of the Rules of Court vis--vis Rule 7 of the RPEC, it should be at once apparent
that in petitions like the instant petition involving unlawful act or omission causing environmental damage of such a magnitude as to
prejudice the life, health or property of inhabitants in two or morecities or provinces, Rule 7 of the RPEC is the applicable remedy. Thus,
the vital, pivotal averment is the illegal act or omission involving environmental damage of such a dimension that will prejudice a huge
number of inhabitants in at least 2 or more cities and provinces. Without such assertion, then the proper recourse would be a petition
under Rule 65, assuming the presence of the essential requirements for a resort to certiorari. It is, therefore, possible that subject
matter of a suit which ordinarily would fall under Rule65 is subsumed by the Rule 7 on kalikasanas long as such qualifying averment of
environmental damage is present. I can say without fear of contradiction that a petition for a writ of kalikasanis a special version of a
Rule 65 petition, but restricted in scope but providing a more expeditious, simplified and inexpensive remedy to the parties.
The Court must not take a myopic viewof the case, but must bear in mind that what is on the table is a case which seeks to avert the
occurrence of a disaster which possibly could result in a massive environmental damage and widespread harm to the health of the
residents of an area. This is not a simple case of grave abuse of discretion by a government official which does not pose an
environmental threat with serious and far-reaching implications and could be adequately and timely resolved using ordinary rules of
procedure. To reiterate, the Rules on petitions for writ of kalikasan were specifically crafted for the stated purpose of expediting
proceedings where immediacy of action is called for owing to the gravity and irreparability of the threatened damage. And this is
precisely what is being avoided in the instant case.
Additionally, it must be emphasized that the initial determination of whether a case properly falls under a writ of kalikasan petition differs
from the question of whether the parties were able to substantiate their claim of a possible adverse effect of the activity to the
environment. The former requires only a perfunctory review of the allegationsin the petition, without passing on the evidence, while the
latter calls for the evaluation and weighing of the parties respective evidence. And it is in the latter instance that Casio, et al. miserably
fell short.By not presenting even a single expert witness, they were unable to discharge their duty of proving to the Court that the
completion and operation of the power plant would bring about the alleged adverse effects to the health of the residents of Bataan and
Zambales and would cause serious pollution and environmental degradation thereof. Hence, the denial of their petition.
Oposa ruling should not be abandoned
The dissent proposes the abandonment of the doctrinal pronouncement in Oposa 9 bearing on the filing of suits in representation of
others and of generations yet unborn, now embodied in Sec. 5 of the Environmental Rules. In the alternative, it is proposed that
allowing citizen suits under the same Section 5 of the Environmental Rules be limited only to the following situations: (1) there is a clear
legal basis for the representative suit; (2) there are actual concerns based squarely upon an existing legal right; (3) there is no
possibility ofany countervailing interests existing within the population represented or those that are yet to be born; and (4) there is an
absolute necessity for suchstanding because there is a threat or catastrophe so imminent that an immediate protective measure is
necessary.
I strongly disagree with the proposal.
For one, Oposacarries on the tradition to further liberalize the requirement on locus standi. For another, the dissent appears to gloss
over the fact that there are instances when statutes have yet to regulate an activity or the use and introduction of a novel technology in
our jurisdiction and environs, and to provide protection against a violation of the peoples right to life. Hence, requiring the existence
ofan "existing and clear legal right or basis" may only prove tobe an imposition of a strict, if impossible, condition upon the parties
invoking the protection of their right to life.
And for a third, to require that there should be no possibility of any countervailing interests existing withinthe population represented or
those that are yet to be born would likewise effectively remove the rule on citizens suits from our Environmental Rules orrender it
superfluous. No party could possibly prove, and no court could calculate, whether there is a possibility that other countervailing interests
exist in a given situation. We should not lose sight of the fact that the impact ofan activity to the environment, to our flora and fauna, and
to the health ofeach and every citizen will never become an absolute certainty such that it can be predicted or calculated without error,
especially if we are talking about generations yet unborn where we would obviously not have a basis for said determination. Each
organism, inclusive of the human of the species, reacts differently to a foreign body or a pollutant, thus, the need to address each
environmental case on a case-to-case basis. Too, making sure that there are no countervailing interests in existence, especially those
of populations yet unborn, would only cause delays in the resolution of an environmental case as this is a gargantuan, if not well-nigh
impossible, task.
It is for the same reason that the rule on res judicatashould not likewise be applied to environmental cases with the same degree of
rigidity observed in ordinary civil cases, contraryto the dissents contention. Suffice it to state that the highly dynamic, generally
unpredictable, and unique nature of environmental cases precludes Us from applying the said principle in environmental cases.
Lastly, the dissents proposition that a "citizen suit should only be allowed when there is an absolute necessity for such standing
because there is a threat or catastrophe so imminentthat an immediate protective measure is necessary" is a pointless condition tobe
latched onto the RPEC. While the existence of an emergency provides a reasonable basis for allowing another person personally
unaffected by an environmental accident to secure relief from the courts in representation of the victims thereof, it is my considered
view that We need not limit the availability of a citizens suit to such extreme situation.
The true and full extent of an environmental damage is difficult to fully comprehend, much so to predict.Considering the dynamics of
nature, where every aspect thereof is interlinked, directly or indirectly, it can be said that a negative impact on the environment, though
at times may appear minuscule at one point, may cause a serious imbalance to our environs in the long run. And it is not always that
this imbalance immediately surfaces. In some instances, it may take years before we realize that the deterioration is already serious
and possibly irreparable, just as what happened to the Manila Bay where decades of neglect, if not sheer citizen and bureaucratic
neglect, ultimately resulted in the severe pollution of the Bay.10 To my mind, the imposition of the suggested conditions would virtually
render the provisions on citizen's suit a pure jargon, a useless rule, in short.
Anent the substantive issues, I join the ponencia in its determination that Casifio, et al. failed to substantiate their claim of an imminent
and grave injury to the environment should the power project proceed.
I vote to DENY the Petition in G.R. No. 207282, and to GRANT the Petitions in G.R. Nos. 207257, 207276 and 207366.
PRESBITERO J. VELASCO, JR.

Associate Justice
Footnotes
1 Rollo (G.R. No. 207282), pp. 21-24.
2 Id. at 31-33.
3 Petition, pp. 17-18.
4 Petition, p. 46.
5 Section 1. Petition for certiorari. When a tribunal, board or officer exercising judicial or quasi-judicial functions has
acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such
incidental reliefs as law and justice may require.
The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of
all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as
provided in the third paragraph of section 3, Rule 46. See Bangus Fry Fisherfolk, et al. v. Lanzanas, G.R. No. 131442,
July 10, 2003.
6 Annotation to the Rules of Procedure for Environmental Cases,p. 98.
7 Id.
8 Id. at 133.
9 G.R. No. 101083, July 30, 1993, 224 SCRA 792.
10 See MMDA v. Concerned Residents of Manila Bay, G.R. Nos. 171947-48, December 18, 2008.
CONCURRING AND DISSENTING OPINION
LEONEN, J.:
I concur that the petition for the Issuance of a Writ of Kalikasan should be dismissed.
A Writ of Kalikasan is an extraordinary and equitable writ that lies only to prevent an actual or imminent threat "of such magnitude as to
prejudice the life, health or property of inhabitants in two or more cities or provinces."1 It is not the proper remedy to stop a project that
has not yet been built. It is not the proper remedy for proposed projects whose environmental compliance certificates (ECC) are yet to
be issued or may still be questioned through the proper administrative and legal review processes. In other words, the petition for a Writ
of Kalikasan does not subsume and is not a replacement for all remedies that can contribute to the protection of communities and their
environment.
I dissent from the majority's ruliIJ.g regarding the validity of the amended ECCs. Aside from this case being the wrong forum for such
issues, Presidential Decree Nos. 11512 and 15863 instituting the Environmental Impact Statement System grants no power to the
Department of Environment and Natural Resources to exempt environmentally critical projects from this requirement in the guise of
amended project specifications. Besides, even assuming without granting that the Department of Environment and Natural Resources
Administrative Order No. 2003-304 was validly issued, the changes in the project design were substantial. Its impact on the ecology
would have been different from how the project was initially presented. The Court ofAppeals committed grave abuse of discretion in
considering this issue because the procedure for a Writ of Kalikasan is not designed to evaluate the propriety of the ECCs.
Compliance with Sections 265 and 276 of the Local Government Code and the provisions of the Indigenous Peoples Rights Act
(IPRA)7 is not a matter that relates to environmental protection directly. The absence of compliance with these laws forms causes of
action that cannot also be brought through a petition for the issuance of a Writ of Kalikasan.
This case highlights the dangers of abuse of the extraordinary remedy of the Writ of Kalikasan. Petitioners were not able to move
forward with substantial evidence. Their attempt topresent technical evidence and expert opinion was so woefully inadequate that they
put at great risk the remedies of those who they purported to represent in this suit inclusive of generations yet unborn.
Furthermore, the original Petition for the issuance of a Writ of Kalikasan that was eventually remanded to the Court of Appeals was not
brought by the proper parties.
Only real parties in interest may prosecute and defend actions.8 The Rules of Court defines "real party in interest" as a person who
would benefit or be injured by the courts judgment. Rule 3, Section 2 of the Rules of Court provides:
SEC. 2. Parties in interest. A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the
party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended
in the name of the real party in interest.
The rule on real parties in interestis incorporated in the Rules of Procedure for Environmental Cases.Rule 2, Section 4 provides:
Section 4. Who may file. Any real party in interest, including the government and juridical entities authorized by law, may file a civil
action involving the enforcement or violation of any environmental law.
A person cannot invoke the courts jurisdiction if he or she has no right or interest to protect.9 He or she who invokes the courts
jurisdiction must be the "owner of the right sought to be enforced."10 In other words, he or she must have a cause of action.An action
may be dismissed on the ground of lack of cause of action if the person who instituted it is not the real party in interest.11 The term
"interest" under the Rules of Court must refer to a material interest that is not merelya curiosity about or an "interest in the question
involved."12 The interest must be present and substantial. It is not a mere expectancy or a future, contingent interest. 13
A person who is not a real party in interest may institute an action if he or she is suing as representative of a real party in interest. When
an action is prosecuted or defended by a representative, that representative is not and does not become the real party in interest. The
person represented is deemed the real party in interest. The representative remains to be a third party to the action instituted on behalf
of another. Thus:
SEC. 3. Representatives as parties. Where the action is allowed to be prosecuted or defended by a representative or someone acting
in a fiduciarycapacity, the beneficiary shall be included in the title of a case and shall be deemed to be the real party in interest. A
representative may be a trustee of an express trust,a guardian, an executor or administrator, or a party authorized by law or these
Rules. An agent acting in his own nameand for the benefit of an undisclosed principal may sue orbe sued without joining the principal
except when the contract involves things belonging to the principal.
To sue under this rule, two elementsmust be present: "(a) the suit is brought on behalf of an identified party whose right has been
violated, resulting in some form of damage, and (b) the representative authorized by law or the Rules of Court to represent the victim."14
The Rules of Procedure for Environmental Cases allows filing of a citizens suit. A citizens suit under thisrule 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. In
citizens suits filed under the Rules of Procedure for Environmental Cases, the real parties in interest are the minors and the
generations yet unborn.Section 5 of the Rules of Procedure for Environmental Cases provides:
SEC. 5. Citizen suit. Any Filipino citizen in representation of others, including minors or generations yet unborn may file an action to
enforce rights or obligations under environmental laws. Upon the filing of a citizen suit, the court shall issue an order which shall contain
a brief description of the cause of action and the reliefs prayed for, requiring all interested parties to manifest their interest to intervene
in the case within fifteen (15) days from notice thereof. The plaintiff may publish the order once in a newspaper of a general circulation
in the Philippines or furnish all affected barangays copies of said order.
The expansion of what constitutes "real party in interest" to include minors and generations yet unborn is a recognition of this courts
ruling in Oposa v. Factoran.15 This court recognized the capacity of minors (represented by their parents) to file a class suit on behalf of
succeeding generations based on the concept of intergenerational responsibility to ensure the future generations access toand
enjoyment of countrys natural resources.16
To allow citizens suits to enforce environmental rights of others, including future generations, is dangerous for three reasons:
First, they run the risk of foreclosing arguments of others who are unable to take part in the suit, putting into question its
representativeness. Second, varying interests may potentially result in arguments that are bordering on political issues, the resolutions
of which do not fall upon this court. Third, automatically allowing a class or citizens suit on behalf of minors and generations yet unborn
may result in the oversimplification of what may be a complex issue, especially in light of the impossibility of determining future
generations true interests on the matter.17
In citizens suits, persons who may have no interest in the case may file suits for others. Uninterested persons will argue for the persons
they represent, and the court will decide based on their evidence and arguments. Any decision by the court will be bindingupon the
beneficiaries, which in this case are the minors and the future generations. The courts decision will be res judicata upon them and
conclusive upon the issues presented.
Thus, minors and future generations will be barred from litigating their interests in the future, however different it is from what was
approximated for them by the persons who alleged to represent them. This may weaken our future generations ability to decide and
argue for themselves based on the circumstancesand concerns that are actually present in their time. Expanding the scope of who may
be real parties in interest in environmental cases to include minors and generations yet unborn "opened a dangerous practice of binding
parties who are yet incapable of making choices for themselves, either due to minority or the sheer fact that they do not yet exist."18
This courts ruling in Oposashould, therefore, be abandoned or at least should be limited to situations when:
(1) "There is a clear legal basis for the representative suit;
(2) There are actual concerns based squarely upon an existing legal right;
(3) There is no possibility of any countervailing interests existing within the population represented orthose that are yet
to be born; and
(4) There is an absolute necessity for such standing because there is a threat or catastrophe so imminentthat an
immediate protective measure is necessary."19
Representative suits are different fromclass suits. Rule 3, Section 12 of the Rules of Court provides:
SEC. 12. Class suit. When the subject matter of the controversy is one of common or general interest to many persons so numerous
that it is impracticable to join all as parties, a number of themwhich the court finds to be sufficiently numerous and representative as to
fully protect the interests of all concerned may sue or defend for the benefit of all. Any party in interest shall have the right to protect his
individual interest.
Thus, class suits may be filed when the following are present:
a) When the subject matter of the controversy is of common or general interest to many persons;
b) When such persons are so numerous that it is impracticable to join them all as parties; and
c) When such persons are sufficiently numerous as to represent and protect fully the interests of all concerned.
A class suit is a representative suit insofar as the persons who institute it represent the entire class of persons who have the same
interest or who suffered the same injury. However, unlike representative suits, the persons instituting a class suit are not suing merely
as representatives. They themselves are real parties in interest directly injured by the acts or omissions complained of. There is a
common cause of action in a class. The group collectively not individually enjoys the right sought to be enforced.
The same concern in representative suits regarding res judicata applies in class suits. The persons bringing the suit may not be truly
representative of all the interests of the class they purport to represent, but any decision issued will bind all members of the class.
However, environmental damage or injury is experienced by each person differently in degree and in nature depending on the
circumstances. Therefore, injuries suffered by the persons brought as party to the class suit may not actually be common to all. The
representation of the persons instituting the class suit ostensibly on behalf of others becomes doubtful. Hence, courts should ensure
that the persons bringing the class suit are truly representative of the interests of the persons they purport to represent.
In addition, since environmental cases are technical in nature, persons who assert environment-related rights must be able to show that
they are capable of bringing "reasonably cogent, rational, scientific, well-founded arguments" as a matter of fairness to those they say
they represent. Their beneficiaries would expect that they would argue for their interests in the best possible way.20
The court should examine the cogency of a petitioners or complainants cause by looking at the allegations and arguments in the
complaint or petition. Their allegations and arguments must show at the minimum the scientific cause and effect relationship between
the act complained of and the environmental effects alleged. The threat to the environment must be clear and imminent and "of such
magnitude"21 such that inaction will certainly redound to ecological damage. Casio, et al. argued that they were entitled to the
issuance of a Writ of Kalikasan because they alleged thatenvironmental damage would affect the residents of Bataan and Zambales if
the power plant were allowed to operate. They based their allegations on documents stating that coal combustion would produce acid
rain and that exposure to coal power plant emissions would have adverse health effects.
However, Casio, et al. did not present an expert witness whose statements and opinion can be relied on regarding matters relating to
coal technology and other environmental matters. Instead, they presented a partylist representative, a member of an environmental
organization, and a vice governor. These witnesses possess no technical qualifications that would render their conclusions sufficient as
basis for the grant of an environmental relief.
The scientific nature of environmental cases requires that scientific conclusions be taken from experts or persons with "special
knowledge, skill, experience or training."22
Expert opinions are presumed valid though such presumption is disputable. In the proper actions, courts may evaluate the experts
credibility. Credibility, whenit comes to environmental cases, is not limited to good reputation withintheir scientific community. With the
tools of science as their guide, courts should also examine the internal and external coherence of the hypothesis presented by the
experts, recognize their assumptions, and examine whether the conclusions of cause and effect are based on reasonable inferences
from scientifically sound experimentation. Refereed academic scientific publications may assist to evaluate claims made by expert
witnesses.With the tools present within the scientific community, those whose positions based on hysteria or unsupported professional
opinion will become obvious.
Casio, et al.s witnesses admit thatthey are not experts on the matter at hand. None of them conducted a study to support their
statements of cause and effect. It appears that they did not even bother to educate themselves as to the intricacies of the science that
would support their claim.
Casio, et al. only presented documents and articles taken from the internet to support their allegations on the environmental effects of
coal power plants. They also relied on a "final report" on Subic Bay Metropolitan Authoritys social acceptability policy considerations.
There were statements in the report purportedly coming from Dr. Rex Cruz, U.P. Chancellor, Los Baos, Dr. Visitacion Antonio, a
toxicologist, and Andre Jon Uychianco, a marine biologist, stating that "conditions were not present to merit the operation of a coal-fired
power plant." The report also stated that the "coal plant project would pose a wide range of negative impacts on the environment."
Casio, et al., however, did not present the authors of these documents so their authenticity can be verified and the context of these
statements could be properly understood. There was no chance to crossexamine their experts because they could not be cross-
examined. In other words, their case was filed with their allegations only being supported by hearsay evidence that did not have the
proper context. Their evidence could not have any probative value.
In contrast, RP Energy presented expert witnesses answering detail by detail Casio, et al.s allegations. They categorically stated that
the predicted temperature changes would have only minimal impact.23 Their witnesses also testified on the results of the tests
conducted to predict the emissions that would be produced by the power plant. They concluded that the emissions would be less than
the upper limit set in the Clean Air Act.24 They also testified that the gas emissions would not produce acid rain because they were
dilute.25
There was no rebuttal from petitioners. The strength of their claim was limited only to assertions and allegations. They did not have the
evidence to support their claims or torebut the arguments of the project proponents.
This case quintessentially reveals the dangers of unrestricted standing to bring environmental cases as class suits. The lack of
preparation and skill by petitioners endangered the parties they sought to represent and even foreclosed the remedies of generations
yet unborn.
In my view, the standing of the parties filing a Petition for the Issuance of a Writ of Kalikasan may begranted when there is adequate
showing that: (a) the suing party has a direct and substantial interest; (b) there is a cogent legal basis for the allegations and
arguments; and (3) the person suing has sufficientknowledge and is capable of presenting all the facts that are involved including the
scientific basis.26
II
The issuance of the ECCs was irregular. Substantial amendments to applications for ECCs require a new environmental impact
statement.
However, a Petition for the Issuance ofa Writ of Kalikasan is not the proper remedy to raise this defect in courts. ECCs issued by the
Department of Environment and Natural Resources may be the subject of a motion for reconsideration with the Office of the Secretary.
The Office of the Secretary may inform himself or herself of the science necessary to evaluate the grant or denial of an ECC by
commissioning scientific advisers or creating a technical panel of experts. The same can be done at the level of the Office of the
President where the actions of the Office of the Secretary of the DENR may be questioned. It is only after this exhaustion of
administrative remedies which embeds the possibility of recruiting technical advice that judicial review can be had of the legally cogent
standards and processes that were used.
A Petition for a Writ of Kalikasan filed directly with this court raising issues relating to the Environmental Compliance Certificate or
compliance with the Environmental Impact Assessment Process denies the parties the benefit of a fuller technical and scientific review
of the premises and conditions imposed on a proposed project. If given due course, this remedy prematurely compels the court to
exercise its power to review the standards used without exhausting all the administrative forums that will allow the parties to bring
forward their best science. Rather than finding the cogent and reasonable balance to protect our ecologies, courts will only rely on our
own best guess of cause and effect. We substitute our judgement for the science of environmental protection prematurely.
Besides, the extraordinary procedural remedy of a Writ of Kalikasan cannot supplant the substantive rights involved in the
Environmental Impact Assessment Process.
Presidential Decree No. 1151 provides for our environmental policy to primarily create, develop, and maintain harmonious conditions
under which persons and nature can exist.27
Pursuant to this policy, it was recognized that the general welfare may be promoted by achieving a balance between environmental
protection, and production and development.28 Exploitation of the environment may be permitted, but always with consideration of its
degrading effects to the environment and the adverse conditions that it may cause to the safety of the present and future
generations.29 The Environmental Impact Assessment System compels those who would propose an environmentally critical project or
conduct activities in an environmentally critical area to consider ecological impact as part of their decision-making processes. By law
and regulation, it is not only the costs and profit margins that should matter.
Presidential Decree No. 1151 established a duty for government agencies and instrumentalities, and private entities to submit a
detailed environmental impact statement for every proposed action, project, or undertaking affecting the quality of the environment.
Section 4 of Presidential Decree No. 1151 provides:
Section 4. Environmental Impact Statements.Pursuant to the above enunciated policies and goals, all agencies and instrumentalities of
the national government, including government-owned or controlledcorporations, 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 detail
statement on
(a) the environmental impactof 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 involve[s] the use of depletable or non-renewable resources, a finding must be made that
such use and commitment are warranted.
Before an environmental impact statement is issued by a lead agency, 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.
Based on the required environmental impact statement under Presidential Decree No. 1151, Presidential Decree No. 1586 was
promulgated establishing the Environmental Impact Statement System.30
Under this system, the President may proclaim certain projects as environmentally critical. 31 An environmentally critical project is a
"project or program that has high potential for significant negative environmental impact." 32Proposals for environmentally critical
projects require an environmental impact statement.33
On December 14, 1981, the President of the Philippines issued Proclamation No. 2146 declaring fossil-fueled power plants as
environmentally-critical projects. Thisplaced fossil-fueled power plants among the projects that require an environmental impact
statement prior to the issuance of an ECC.
In this case, the Department of Environment and Natural Resources issued an Environmental Compliance Certificate to RP Energy
after it had submitted an environmental impact statement for its proposed 2 x 150 MW coal-fired power plant.34
However, when RP Energy requested for amendments of its application to the Department of Environmental and Natural Resources at
least twice, amended ECCs were issued without requiring the submission of new environmental impact statements.
RP Energys first request for amendment was due to its decision to change the project design to include "a barge wharf, seawater
intake breakwater, subsea discharge pipeline, raw water collection system, drainage channel improvement, and a 230kV double-circuit
transmission line".35 RP Energy submitted only an Environmental Performance Report and Management Plan (EPRMP) to support its
request.36
RP Energys second request for amendment was due to its desire to construct a 1 x 300 MW coal-fired power plant instead of a 2 x 150
MW coal-fired power plant.37 For this request, RP Energy submitted a Project Description Report (PDR).38
Later, RP Energy changed the proposal to 2 x 300 MW coal-fired power plant.39 It submitted an EPRMP to support its proposal.40
Department of Environment and Natural Resources and RP Energy argued that the ECC was valid because it was issued in
accordance with the DAO 2003-30 or the Implementing Rules and Regulations for the Philippine environmental impact statement
system (IRR).41 Department of Environment and Natural Resources also argued that since the environmental impact statement
submitted by RP Energy was still valid, there was no need for the submission of a new environmental impact statement.42 Further, a
change in the configuration of the proposed coal-fired power plant from 2 x 150 MW to 1 x 150MW was not substantial to warrant the
submission of a new environmental impact statement.43
The Department of Environment and Natural Resources and RP Energys arguments are not tenable.
The issuance of an ECC without a corresponding environmental impact statement is not valid. Section 4 of Presidential Decree No.
1151 specifically requires the filing of environmental impact statements for every action that significantly affects environmental quality.
Presidential Decree No. 1586, the law being implemented by the IRR, recognizesand is enacted based on this requirement. 44
Presidential Decree Nos. 1151 and 1586 do not authorize the Department of Environment and Natural Resources to allow exemptions
to this requirement in the guise of amended project specifications.
The only exception to the environmental impact statement requirement is when the project is not declared as environmentally critical, as
provided later in Presidential Decree No. 1586, thus: Section 5. Environmentally Non-Critical Projects. All other projects, undertakings
and areasnot declared by the Presidents as environmentally critical shall be considered as non-critical and shall not be required to
submit an environmental impact statement. The Environmental Protection Council, thru the Ministry of Human Settlements may
however require non-critical projects and undertakingsto provide additional environmental safeguards as it may deem necessary.
Since fossil-fuelled power plants are already declared as environmentally critical projects in Proclamation No. 2146, 45 an environmental
impact statement is required. An EPMRP or a project description is not enough.
An EPMRP and a project description are different from an environmental impact statement. The IRR itself describes the differences
between the features of each documentation, as well as eachs appropriate uses. The most detailed among the three is the
environmental impact statement, which is required under the law for all environmentally critical projects. An environmental impact
statement is a document of scientific opinion "that serves as an application for an ECC. It is a comprehensive study of the significant
impacts of a project on the environment."46 It is predictive to an acceptable degree of certainty. It is an assurance that the proponent
has understood all of the environmental impacts and that the measures it proposed to mitigate are both effective and efficient.
Section 4 of Presidential Decree No. 1151 requires the following detailed information in the environmental impact statement:
Section 4. Environmental Impact Statements.. . .
(a) the environmental impactof 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 involve the use of depletable or non-renewable resources, a finding must be made that such
use and commitment are warranted.
The IRR was more specific as to what details should be included in the environmental impact statement:
5.2.1 Environmental Impact Statement (EIS).
The EIS should contain at least the following:
a. EIS Executive Summary;
b. Project Description;
c. Matrix of the scoping agreement identifying critical issues and concerns, as validated by EMB; d. Baseline
environmental conditions focusing on the sectors (and resources) most significantly affected by the proposed action;
e. Impact assessment focused on significant environmental impacts (in relation to project construction/commissioning,
operation and decommissioning), taking into account cumulative impacts;
f. Environmental Risk Assessment if determined by EMB as necessary during scoping;
g. Environmental Management Program/Plan;
h. Supporting documents, including technical/socioeconomic data used/generated; certificate of zoning viability and
municipal land use plan; and proof of consultation with stakeholders;
i. Proposals for Environmental Monitoring and Guarantee Funds including justification of amount, when required;
j. Accountability statement of EIA consultants and the project proponent; and

k. Other clearances and documents that may be determined and agreed upon during scoping.
Not all the details required in an environmental impact statement can be found in an EPRMP. An EPRMP only requires:
5.2.5 Environmental Performance Report and Management Plan (EPRMP).
The EPRMP shall contain the following:
a. Project Description;
b. Baseline conditions for critical environmental parameters;
c. Documentation of the environmental performance based on the current/past environmental management measures
implemented;
d. Detailed comparative description of the proposed project expansion and/or process modification with corresponding
material and energy balances in the case of process industries; and
e. EMP based on an environmental management system framework and standard set by EMB.
An EPRMP is not a comprehensive study of environmental impacts, unlike an environmental impact statement.It is, in essence,a
description of the project and documentation of environmental performance. Based on Section 5.2.5 of the IRR, it contains no
identification of critical issues. There is also no assessment of the environmental impact and risks that the project may cause.
The ponencia finds that the EIS requirement was complied with. According to the ponencia, the law does not expressly state that
applications for amendments of ECCs require an EIS. Therefore, the EIS submitted prior to the amendment of the projects features
was sufficient compliance with the EIS requirement under our laws.
Presidential Decree Nos. 1151 and 1586 require an EIS for every project that will substantially affectour environment. These laws do
not exempt amended projects from the EIS requirement. The ponencias finding presumes that for purposes of compliance with this EIS
requirement, the project as originally described was identical with the project after the amendment such that no new EIS was necessary
to determine if the environmental impact would be different after the amendment. This is a dangerous and premature conclusion.
Any finding that the original projectand the modified project are the same or different from each other in terms of environmental impact
is itself a conclusion that must have scientific basis. Thus, to determine the environmental impact of projects, a different EIS should be
submitted to reflect substantial modifications.
Our law requires the EIS for a purpose. It ensures that business proponents are sufficiently committed to mitigate the full environmental
impacts of their proposed projects. It also ensures that the proposed mitigating measures to be applied are appropriate for the
operations of an environmentally critical project. Dispensing with the appropriate EIS encourages businesses to treat the EIS
requirement as a mere formality that may be obtained and later conveniently amend without the need to conduct the appropriate
studies. It discourages full responsibility and encourages businesses to resort to expedient measures to secure the proper
environmental clearances.
The ponencia ruled that a holistic reading of the IRR shows that the environmental impact assessment process allows for flexibility in
the determination of the appropriate documentary requirements. The ponencia cites Section 8.3 of the IRR which states that the
processing requirements for ECC amendments are focused only on necessary information. Thus:
8.3 Amending an ECC
Requirements for processing ECC amendments shall depend on the nature of the request but shall be focused on the information
necessary to assess the environmental impact of such changes.
8.3.1. Requests for minor changes to ECCs such as extension of deadlines for submission of postECC requirements shall be decided
upon by the endorsing authority.
8.3.2. Requests for major changes to ECCs shall be decided upon by the deciding authority. 8.3.3. For ECCs issued pursuant to an
IEE or IEE checklist, the processing of the amendment application shall not exceedthirty (30) working days; and for ECCs issued
pursuant to an EIS, the processing shall not exceed sixty (60) working days. Provisions on automatic approval related to prescribed
timeframes under AO 42 shall also apply for the processing of applications to amend ECCs.
The ponencia also cites the Revised Procedural Manual for DAO 03-30s (Revised Manual) "Flowcharton Request for ECC
Amendments" (flowchart) and the "Decision Chart for Determination of Requirements for Project Modification" (decision chart). 47
The first step in the flowchart states that "[w]ithin three (3) years from ECC issuance (for projects not started) OR at any time during
project implementation, the Proponent prepares and submits to the ECC-endorsing DENR-EMB office a LETTER-REQUESTfor ECC
amendments including data information, reports or documents to substantiate the requested revisions."
Meanwhile, the decision chart states that an EPRMP will be required for "[i]ncrease in capacity or auxiliarycomponent of the original
project which will either exceed PDR (non-covered project) thresholds, or EMP & ERA cannot address impacts and risks arising from
modification."48 According to the ponencia, these portions of the flowchart and the decision chart show that the ECC amendment
process also applies to nonoperating projects, and that the Department of Environment and Natural Resources correctly required an
EPRMP tosupport the first of RP Energys requested amendment.
However, to interpret the rules in a manner that would give the Department of Environment and Natural Resources the discretion
whether to require or not to require an environmental impact statement renders the rules void. As an administrative agency, the
Department of Environment and Natural Resources power to promulgate rules is limited by the provisions of the law it implements. It
has no powerto modify the law, or reduce or expand its provisions. The provisions of the law prevail if there is inconsistency between
the law and the rules promulgated by the administrative agency.
In United BF Homeowners Association v. BF Homes, Inc.:49
As early as 1970, in the case of Teoxon vs. Members of the Board of Administrators (PVA), we ruled that the power to promulgate rules
in the implementation of a statute is necessarily limited to what is provided for in the legislative enactment. Its terms must be followed
for an administrative agency cannot amend an Act of Congress. "The rule-making power must be confined to details for regulating the
mode or proceedings to carry into effect the law as it has been enacted, and it cannot be extended to amend or expand the statutory
requirements or to embrace matters not covered by the statute." If a discrepancy occurs between the basic law and an implementing
rule or regulation, it is the former that prevails.
....
The rule-making power of a public administrative body is a delegated legislative power, which it may not use either to abridge the
authority given it by Congress or the Constitution or to enlarge its power beyond the scope intended. Constitutional and statutory
provisions control what rules and regulations may be promulgated by such a body, as well as with respect to what fields are subject to
regulation by it. It may not make rules and regulations which are inconsistent with the provisions of the Constitution or a statute,
particularly the statute it is administering or which created it, or which are in derogation of, or defeat the purpose of a statute.
Moreover, where the legislature has delegated to an executive or administrative officers and boards authority to promulgate rules to
carry out an express legislative purpose, the rules of administrative officers and boards, which have the effect of extending, or which
conflict with the authority-granting statute,do not represent a valid exercise of the rule-making power but constitute an attempt by an
administrative body to legislate. "A statutory grant of powers should not be extended by implication beyond what may be necessary for
their just and reasonable execution." It is axiomatic that a rule or regulation must bear upon, and be consistent with, the provisions of
the enabling statute if such rule or regulation is to be valid.50
In this case, the IRR implements Presidential Decree No. 1586 which in turn is based on Presidential Decree No. 1151. In Presidential
Decree No. 1151, an environmental impact statement is required for all projects that have a significant impact on the environment. The
IRR cannot provide for exemptions from the requirement of environmental impact statement for all environment-related actions or
projects more than those covered by the exception provided in Presidential Decree No. 1586.
Thus, a project description also does not supplant the requirement of an environmental impact statement.RP Energy only submitted a
project description to support its request for second amendment of the ECC to change the design of the coal plant from 2 x 150 MW to
1 x 300 MW. A project description is described in the IRR as follows:
x. Project Description (PD) - document, which may also be a chapter in an EIS, that describes the nature, configuration, use of raw
materials and natural resources, production system, waste or pollution generation and control and the activities of a proposed project. It
includes a description of the use of human resources as well as activity timelines, during the pre-construction, construction, operation
and abandonment phases. It is to be used for reviewing co-located and single projects under Category C, as well as for Category D
projects.
It shall contain the following information:
5.2.6. Project Description (PD)
The PD shall be guided by the definition of terms and shall contain the following:
a. Description of the project;
b. Location and area covered;
c. Capitalization and manpower requirement;
d. For process industries, a listing of raw materials to be used, description of the process or manufacturing technology,
type and volume of products and discharges;
e. For Category C projects, a detailed description on how environmental efficiency and overall performance
improvement will be attained, or how an existing environmental problem will be effectively solved or mitigated by the
project;
f. A detailed location map of the impacted site showing relevant features (e.g. slope, topography, human settlements);
[and]
g. Timelines for construction and commissioning
Based on the IRR, therefore, the project description also does not contain the features of an environmental impact statement. It is
merely a descriptive of the projects nature and use of resources. It does not contain details of the projects environmental impact,
critical issues, and risks.
We usually defer to the findings of fact and technical conclusions of administrative agencies because of their specialized knowledge in
their fields. However, such findings and conclusions must always be based on substantial evidence, which is the "relevant evidence as
a reasonable mind might accept as adequate to support a conclusion." 51 Because of the risks involved in environmental cases, the
evidence requirement may be more than substantial. The court has moreleeway to examine the evidences substantiality.
Judicial review of administrative findings or decisions is justified if the conclusions are not supported by the required standard of
evidence. It is also justified in the following instances as enumerated in Atlas Consolidated Mining v. Factoran, Jr.:52
. . . findings of fact in such decision should not be disturbed if supported by substantial evidence, but review is justified when there has
been a denial of due process, or mistake of law or fraud, collusion or arbitrary action in the administrative proceeding. . . where the
procedure which led to factual findings is irregular; when palpable errors are committed; or when a grave abuse of discretion,
arbitrariness, or capriciousness is manifest.53(Emphasis supplied)
Thus, when there are procedural irregularities that lead to the conclusions or factual findings, the court may exercise their power of
judicial review. In this case, the Department of Environment and Natural Resources issued an amended ECC based on an
environmental impact assessment that does not correspond to the new design of the project.
An environmental impact statement is a comprehensive assessment of the possible environmental effects of a project. The study and
its conclusions are based on projects components, features, and design. Design changes may alter conclusions. It may also have an
effecton the cumulative impact of the project as a whole. Design changes may also have an effect on the results of an environmental
impact assessment.
For these reasons, the amended ECCs issued without a corresponding environmental impact statement is void. A new ECC should be
issued based on an environmental impactstatement that covers the new design proposed by RP Energy.
However, a Writ of Kalikasan is notthe proper remedy to question the irregularities in the issuance of an ECC. Casio, et al. should
have first exhausted administrative remedies in the Department of Environment and Natural Resources and the Office of the President
before it could file a Petition for certiorari with our courts. Essentially, it could not have been an issue ripe for litigation in a remanded
Petition for Issuance of a Writ of Kalikasan. Thus, the Court of Appeals committed grave abuse of discretion in acting on the nullification
of the ECC.More so, it is improper for us to make any declaration on the validity of the amended ECCs in this action.
III
Local government consent under Sections 26 and 27 of the Local Government Code is not a requisitefor the issuance of an ECC. The
issuance of an ECC and the consent requirement under the Local Government Code involve different considerations.
The Department of Environment and Natural Resources issues an ECC in accordance with Presidential Decree Nos. 1151 and 1586. It
is issued after a proposed projects projected environmental impact is sufficiently assessed and found to be in accordance with the
applicable environmental standards. A Department of Environment and Natural Resources valid finding that the project complies with
environmental standards under the law may result in the issuance of the ECC. In other words, an ECC is issued solely for
environmental considerations.
Although Section 26 of the Local Government Code requires "prior consultation" with local government units, organizations, and
sectors, it does not state that such consultation is a requisite for the issuance of an ECC. Section 27 of the Local Government
Codeprovides instead that consultation, together with the consent of the local government is a requisite for the implementationof the
project. This shows thatthe issuance of the ECC is independent from the consultation and consent requirements under the Local
Government Code. Sections 26 and 27of the Local Government Code provide:
Section 26. Duty of National Government Agencies in the Maintenance of Ecological Balance.- It shall be the duty of every national
agency or government-owned or controlled corporation authorizing or involved in the planning and implementation of any project or
program that may cause pollution, climatic change, depletion of non-renewable resources, loss of crop land, rangeland, or forest cover,
and extinction of animal or plant species, to consultwith the local government units, nongovernmental organizations, and other sectors
concerned and explain the goals and objectives of the project or program, its impact upon the people and the community in terms of
environmental or ecological balance,and the measures that will be undertaken to prevent or minimize the adverse effects thereof.
Section 27. Prior Consultations Required. No project or program shall be implemented by government authorities unless the
consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained:
Provided, That occupants in areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites
have been provided, in accordance with the provisions of the Constitution. (Emphases supplied)
Further, the results of the consultations under Sections 26 and 27 do not preclude the local government from taking into consideration
concerns other than compliance with the environmental standards. Section 27 does not provide that the local governments prior
approval must be based only on environmental concerns. It may be issuedin light of its political role and based on its determination of
what is economically beneficial for the local government unit.
The issuance of the ECC, therefore, does not guarantee that all other permits for a project will be granted.1wphi1 It does not bind the
local government unit to give its consent for the project. Both are necessary prior to a projects implementation.
Similarly, the requirement of certificate of non-overlap under Section 59 of the IndigenousPeoples Rights Act 54 is independent from the
issuance of an ECC. This requirement is a property issue. It is not related to environmental concerns under the Department of
Environment and Natural Resources jurisdiction.
IV
The question relating to the validityof the agreement between the SBMA and RP Energy is independent from the questions relating to
whether the proper permits have been issued aswell as whether the consent of the local government units have been properly secured.
The ponencia makes the claim that the SBMAs power to approve or disapprove projects in territories covered by the SBMA is superior
over the local government units. This is based on Section 14 of Republic Act No. 7227, 55which provides:
Sec. 14. Relationship with the Conversion Authority and tthe Local Government Units.
(a) The provisions of existing laws, rules and regulations to the contrary notwithstanding, the Subic Authority shall
exercise administrative powers, rule-making and disbursement of funds over the Subic Special Economic Zone in
conformity with the oversight function of the Conversion Authority.
(b) In case of conflict betweenSubic Authority and the local government units concerned on matters affecting the Subic
Special Economic Zone other than defense and security, the decision of the Subic Authority shall prevail.
I disagree.
Interpreted this way, this provision may not be in accordance with our Constitution. It violates the provisions relating to the Presidents
supervision over local governments and the principle of local government autonomy.
It is our basic policy to ensure the local autonomy of our local government units. 56 Under the Constitution, these local government units
include only provinces, cities, municipalities, barangays, and the autonomous regions of MuslimMindanao and the
Cordilleras.57 Provinces, cities, municipalities, and political subdivisions are created by law based on indicators such as income,
population, and land area.58 Barangays are created through ordinances.59 Aside from the law or ordinance creating them, a local
government unit cannot becreated without the "approval by a majority of the votes case in a plebiscite in the political units directly
affected."60
The Subic Bay Metropolitan Authorityis not a local government unit. It is a corporate body created by a law. 61 No plebiscite or income,
land area, and population requirements need to bereached for its creation. SBMA is merely the implementing arm of the Bases
Conversion Development Authority, which is under the Presidents control and supervision. 62 It does not substitute for the President. It
isnot even the alter ego of the Chief Executive.
Article X, Section 4 of the Constitution provides that the Presidents power over our local government units is limited to general
supervision, thus:
Section 4.The President of the Philippines shall exercise general supervision over localgovernments. Provinces with respect to
component cities and municipalities, and cities and municipalities with respect to component barangays, shall ensure that the acts of
their component units are within the scope of their prescribed powers and functions.
In The National Liga ng mga Barangay v. Paredes,63 this court differentiated between "control" and "supervision":
In the early case ofMondano v. Silvosa, et al., this Court defined supervision as "overseeing, or the power or authority of an officer to
see that subordinate officers perform their duties, and to take such action as prescribed by law to compel his subordinates to perform
their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer
had done in the performance of his duties and to substitute the judgment of the former for that of the latter. In Taule v. Santos, the Court
held that the Constitution permits the President to wield no more authority than that of checking whether a local government or its
officers perform their duties as provided by statutory enactments. Supervisory power, when contrasted with control, is the power of
mere oversight over an inferior body; it does not include any restraining authority over such body. 64
Section 14 of Republic Act No. 7227 cannot be interpreted so as to grant the Subic Bay Metropolitan Authority the prerogative to
supplant the powers of the local government units. Local autonomy ensures that local government units can fully developed as self-
reliant communities. The evolution of their capabilities to respond to the needs of their communities is constitutionally guaranteed. In its
implementation and as a statutory policy, national agencies must consult the local government units regarding projects or programs to
be implemented in their jurisdictions. Article X, Section 2 of the Local Government Code provides:
Section 2. Declaration of Policy.
(a) It is hereby declared the policy of the State that the territorial and political subdivisions of the State shall enjoy
genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities
and make them more effective partners in the attainment of national goals. Toward this end, the State shall provide for
a more responsive and accountable local government structure instituted through a system of decentralization whereby
local government units shall be given more powers, authority, responsibilities, and resources. The process of
decentralization shall proceed from the national government to the local government units.
(b) It is also the policy of the State to ensure the accountability of local government units through the institution of
effective mechanisms of recall, initiative and referendum.
(c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic consultations with
appropriate local government units, nongovernmental and people's organizations, and other concerned sectors of the
community before any project or program is implemented in their respective jurisdictions.
In San Juan v. Civil Service Commission,65 this court emphasized that laws should be interpreted in favor of local autonomy:
Where a law is capable of two interpretations, one in favor of centralized power in Malacaang and the other beneficial to local
autonomy, the scales must be weighed in favor of autonomy.
....
The exercise by local governments of meaningful power has been a national goal since the turn of the century. And yet, inspite of
constitutional provisions and, as in this case, legislation mandating greater autonomy for local officials, national officers cannot seem to
let go of centralized powers. They deny or water down what little grants of autonomy have so far been given to municipal corporations.
....
In his classic work "Philippine Political Law" Dean Vicente G. Sinco stated that the value of local governments as institutions of
democracy is measured by the degree of autonomy that they enjoy. Citing Tocqueville, he stated that "local assemblies of citizens
constitute the strength of free nations. x x x A people may establish a system of free government but without the spirit of municipal
institutions, it cannot have the spirit of liberty." (Sinco, Philippine Political Law, Eleventh Edition, pp. 705-706).
Our national officials should not only comply with the constitutional provisions on local autonomy but should also appreciate the spirit of
liberty upon which these provisions are based.66
Thus, Republic Act No. 7227 has not granted the SBMA with powers superior to those of local government units. The power of local
governments that give consent to national government projects has not been supplanted.
Final note
The states duty to "protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and
harmony of nature"67 can be accomplished in many ways. Before an environmentally critical project can be implemented or prior to an
activity in an environmentally critical area, the law requires that the proponents undergo environmental impact assessments and
produce environmental impact statements. On this basis, the proponents must secure an ECC which may outline the conditions under
which the activity or project with ecological impact can be undertaken. Prior toa national government project, local government units,
representing communities affected, can weigh in and ensure that the proponents take intoconsideration all local concerns including
mitigating and remedial measures for any future ecological damage. Should a project be ongoing, our legal order is not lacking in
causes of actions that could result in preventive injunctions or damages arising from all sorts of environmental torts.
The function of the extraordinary and equitable remedy of a Writ of Kalikasan should not supplant other available remedies and the
nature of the forums that they provide. The Writ of Kalikasan is a highly prerogative writ that issues only when there is a showing of
actual or imminent threat and when there is such inaction on the partof the relevant administrative bodies that will make an
environmental catastrophe inevitable. It is not a remedy that is availing when there is no actual threat or when imminence of danger is
not demonstrable. The Writ of Kalikasan thus is not an excuse to invoke judicial remedies when there still remain administrative forums
to properly address the common concern to protect and advance ecological rights. After all, we cannot presume that only the Supreme
Court can conscientiously fulfill the ecological duties required of the entire state.
Environmental advocacy is primarily motivated by care and compassion for communities and the environment. It can rightly be a
passionately held mission. It is founded on faith that the world as it is now can be different. It implies the belief that the longer view of
protecting our ecology should never be sacrificedfor short-term convenience.
However, environmental advocacy isnot only about passion. It is also about responsibility. There are communities with almost no
resources and are at a disadvantage against large projects that might impact on their livelihoods. Those that take the cudgelslead them
as they assert their ecological rights must show that they have both the professionalism and the capability to carry their cause forward.
When they file a case to protect the interests of those who they represent, they should be able to make both allegation and proof. The
dangers from an improperly managed environmental case are as real to the communities sought to be represented as the dangers from
a project by proponents who do not consider their interests.
The records of this case painfully chronicle the embarrassingly inadequate evidence marshalled by those that initially filed the Petition
for a Writ of Kalikasan. Even with the most conscientious perusal of the records and with the most sympathetic view for the interests of
the community and the environment, the obvious conclusion that there was not much thought or preparation in substantiating the
allegations made in the Petition cannot be hidden. Legal advocacy for the environment deserves much more.
ACCORDINGLY, I vote to DENY the Petition in G.R. No. 207282. I also vote to DENY the Petitions in G.R. No. 207257 and 207276
insofar as the issue of the validity of the EC Cs is concerned.
MARVIC M.V.F. LEONEN

Associate Justice
Footnotes
1 RULES OF PROCEDURE FOR ENVIRONMENTAL CASE, Rule 7, sec. 1.
2 Pres. Decree No. 1151 (1979), Philippine Environmental Policy.
3Pres. Decree No. 1586 (1978), Establishing an Environmental Impact System, Including Other Environmental
Management Related Measures and for Other Purposes.
4 DENR Adm. Order No. 2003-30 (2003), Implementing Rules and Regulations of Presidential Decree No. 1586.
5 Rep. Act No. 7160 (1991), An Act Providing for a Local Government Code of 1991.
Section 26. Duty of National Government Agencies in the Maintenance of Ecological Balance.- It shall be the duty of
every national agency or government-owned or controlled corporation authorizing or involved in the planning and
implementation of any project or program that may cause pollution, climatic change, depletion of non-renewable
resources, loss of crop land, rangeland, or forest cover, and extinction of animal or plant species, to consult with the
local government units, nongovernmental organizations, and other sectors concerned and explain the goals and
objectives of the project or program, its impact upon the people and the community in terms of environmental or
ecological balance, and the measures that will be undertaken to prevent or minimize the adverse effects thereof.
Section 27. Prior Consultations Required.- No project or program shall be implemented by government authorities
unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the
sanggunian concerned is obtained: Provided, That occupants in areas where such projects are tobe implemented shall
not be evicted unless appropriate relocation sites have been provided, in accordance with the provisions of the
Constitution.
7Rep. Act No. 8371 (1997), An Act to Recognize, Protect and Promote the Rights of Indigenous Cultural
Communities/Indigenous Peoples, Creating a National Commission on Indigenous Peoples, Establishing Implementing
Mechanisms, Appropriating Funds Therefor, and for Other Purposes.
8RULES OF COURT, Rule 3, sec. 2; See also Stronghold Insurance Company Inc., v. Cuenca, G.R. No. 173297,
March 6, 2013, 692 SCRA 473 [Per J. Bersamin, First Division].
9 See Consumido v. Ros, 555 Phil. 652, 658 (2007) [Per J. Tinga, Second Division].
10See Stronghold Insurance Company Inc., v. Cuenca, G.R. No. 173297, March 6, 2013, 692 SCRA 473 [Per J.
Bersamin, First Division].
11Id. See also De Leon v. Court of Appeals, 343 Phil. 254 (1997) [Per J. Davide, Jr., Third Division], citing Columbia
Pictures, Inc. v. Court of Appeals, 329 Phil. 875, 900902 (1996) [Per J. Regalado, En Banc].
12See Consumido v. Ros, 555 Phil. 652, 658 (2007) [Per J. Tinga, Second Division]; See also Ang v. Ang, G.R. No.
186993, August 22, 2012, 678 SCRA 699, 707 [Per J. Reyes, Second Division].
13
De Leon v. Court of Appeals, 343 Phil. 254 (1997) [Per J. Davide, Jr., Third Division] citing 1 M. MORAN,
COMMENTARIES ON THE RULES OF COURT 154 (1979).
14 Concurring Opinion of J. Leonen in Arigo v. Swift, G.R. No. 206510, September 16, 2014,
<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2014/september2014/206510_leonen.pdf> [Per J.
Villarama, Jr., En Banc].
15 G.R. No. 101083, July 30, 1993, 224 SCRA 792 [Per J. Davide, Jr., En Banc].
16 Id. at 802-803.
18 Id.
19 Id.
21 RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, Rule 7, sec.1.
22 RULES OF COURT, Rule 130, sec. 49.
23 Decision, pages 29-30.
24 Id. at 32-33.
25 Id. at 38.
27 Pres. Decree No. 1151 (1977), sec. 1.
32 DENR Adm. Order No. 2003-30 (2003), sec. 3(f).
34 Ponencia, pp. 5-6.
35 Id. at p. 6.
36 Id.
37 Id.
38 Id.
39 Id.
40 Id. at 7.
41 Id. at 14 and 16.

42 Id. at 14.
43 Id.
44 DENR Adm. Order No. 2003-30 (2003), sec. 2.
45Proc. No. 2146 (1981), Proclaiming Certain Areas and Types of Projects as Environmentally Critical and Within the
Scope of the Environmental Impact Statement System Established under Presidential Decree No. 1586.
46 DENR Adm. Order No. 2003-30 (2003), sec. 3(k).
47 Ponencia, 66-671.
48 Ponencia, p. 70.
49 369 Phil. 568 (1999) [Per J. Pardo, First Division].
50 Id. at 579580.
51 Ang Tibay v. Court of Industrial Relations, 69 Phil. 635, 642-645 (1940) [Per J. Laurel, En Banc].
54Rep. Act No. 8371 (1997), An Act to Recognize, Protect and Promote the Rights of Indigenous Cultural
Communities/Indigenous Peoples, Creating anNational Commission on Indigenous Peoples, Establishing Mechanisms,
Appropriating Funds Therefor, and for Other Purposes. Indigenous Peoples Rights Act.
Section 59 Certification Precondition. All departments and other governmental agencies shall henceforth be
strictly enjoined from issuing, renewing, or granting any concession, license or lease, or entering into any
production sharing agreement, withoutprior certification from the NCIP that the area affected does not overlap
with any ancestral domain.Such certification shall only be issued after a field based investigation is conducted
by the Ancestral Domains Office of the area concerned: Provided, That no certification shall be issued bythe
NCIP without the free and prior informed and written consent of ICCs/IPs concerned: Provided, further, That no
department, government agency or government-owned or controlled corporation may issue new concession,
license, lease, or production sharing agreement while there is a pending application for a CADT: Provided,
finally, That the ICCs/IPs shall have the right to stop or suspend, inaccordance with this Act, any project that
has not satisfied the requirement of this consultation process.
55Rep. Act No. 7227 (1992), An Act Accelerating the Conversion of Military Reservations into Other Productive Uses,
Creating the Bases Conversion and Development Authority for this Purpose, Providing Funds Therefor and for Other
Purposes.
56CONST. (1987), art. II, sec. 25. The State shall ensure the autonomy of local governments; art. X, sec. 2. The
territorial and political subdivisions shall enjoy local autonomy.
57CONST. (1987), art. X, sec. 1. The territorial and political subdivisions of the Republic of the Philippines are the
provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the
Cordilleras as hereinafter provided.
Section 6. Authority to Create Local Government Units.- A local government unit may be created, divided,
merged, abolished, or its boundaries substantially altered either by law enacted by Congress in the case of a
province, city, municipality, or any other political subdivision, or by ordinance passed by the sangguniang
panlalawigan or sangguniang panlungsod concerned in the case of a barangay located within its territorial
jurisdiction, subject to such limitations and requirements prescribed in this Code.
Section 7. Creation and Conversion.- As a general rule, the creation of a local government unit or its
conversion from one level to another level shall be based on verifiable indicators of viability and projected
capacity to provide services, to wit:
(a) Income. - It must be sufficient, based on acceptable standards, to provide for all essential
government facilities and services and special functions commensurate with the size of its population,
as expected of the local government unit concerned;
(b) Population. - It shall be determined as the total number of inhabitants within the territorial
jurisdiction of the local government unit concerned; and
(c) Land Area. - It must be contiguous, unless it comprises two or more islands or is separated by a
local government unit independent of the others; properly identified by metes and bounds with
technical descriptions; and sufficient to provide for such basic services and facilities to meet the
requirements of its populace.
Compliance with the foregoing indicators shall be attested to by the Department of Finance (DOF), the National
Statistics Office (NSO), and the Lands Management Bureau (LMB) of the Department of Environment and
Natural Resources (DENR).
59 Rep. Act No. 7160 (1991), sec. 6.
60 CONST. (1987), art. X, sec. 10. No province, city, municipality, or barangay may be created, divided, merged,
abolished, or its boundary substantially altered, except in accordance with the criteria established in the local
government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly
affected.
61 Rep. Act No. 7227(1992), sec. 13.
62 Rep. Act No. 7227(1992), sec. 13 and 17.
63 482 Phil. 331 [Per J. Tinga, En Banc].

Paje v. Casino et al.
October 27, 2016

(Remedial law: Appeal; Environmental Law: Writ of Kalikasan)
G.R. No. 207257 February 3, 2015
HON. RAMON JESUS PAJE, in his capacity as DENR Secretary v. Hon. Teodoro Casino, et al.
Facts
The Department of Environment and Natural Resources, issued an Environmental Compliance Certificate
for a proposed coal-fired power plant at Subic, Zambales to be implemented by RP Energy.
Hon. Teodoro Casino and a number of legislators filed a Petition for Writ of Kalikasan against RP energy,
SBMA, and Hon. Ramon Paje as the DENR secretary on the ground that actual environmental damage
will occur if the power plant project is implemented and that the respondents failed to comply with certain
laws and rules governing or relating to the issuance of an ECC and amendments thereto.
The Court of Appeals denied the petition for the Writ of Kalikasan and invalidated the ECC. Both the
DENR and Casino filed an appeal, the former imputing error in invalidating the ECC and its amendments,
arguing that the determination of the validity of the ECC as well as its amendments is beyond the scope
of a Petition for a Writ of kalikasan; while the latter claim that it is entitled to a Writ of Kalikasan.
Issues
1. Whether the parties may raise questions of fact on appeal on the issuance of a writ of Kalikasan; and
2. Whether the validity of an ECC can be challenged via a writ of Kalikasan
Ruling
1. Yes, the parties may raise questions of fact on appeal on the issuance of a writ of Kalikasan because the
Rules on the Writ of kalikasan (Rule 7, Section 16 of the Rules of Procedure for Environmental
Cases)allow the parties to raise, on appeal, questions of fact and, thus, constitutes an exception to
Rule 45 of the Rules of Court because of the extraordinary nature of the circumstances surrounding the
issuance of a writ of kalikasan.
2. Yes, the validity of an ECC can be challenged via a writ of Kalikasan because such writ is principally
predicated on an actual or threatened violation of the constitutional right to a balanced and healthful
ecology, which involves environmental damage of a magnitude that transcends political and territorial
boundaries.
A party, therefore, who invokes the writ based on alleged defects or irregularities in the issuance of an
ECC must not only allege and prove such defects or irregularities, but must also provide a causal link or,
at least, a reasonable connection between the defects or irregularities in the issuance of an ECC and the
actual or threatened violation of the constitutional right to a balanced and healthful ecology of the
magnitude contemplated under the Rules. Otherwise, the petition should be dismissed outright and the
action re-filed before the proper forum with due regard to the doctrine of exhaustion of administrative
remedies.
In the case at bar, no such causal link or reasonable connection was shown or even attempted relative to
the aforesaid second set of allegations. It is a mere listing of the perceived defects or irregularities in the
issuance of the ECC.
G.R. Nos. 171947-48 February 15, 2011
METROPOLITAN MANILA DEVELOPMENT AUTHORITY, DEPARTMENT OF ENVIRONMENT AND

NATURAL RESOURCES, DEPARTMENT OF EDUCATION, CULTURE AND
SPORTS,1 DEPARTMENT OF HEALTH, DEPARTMENT OF AGRICULTURE, DEPARTMENT OF
PUBLIC WORKS AND HIGHWAYS, DEPARTMENT OF BUDGET AND MANAGEMENT, PHILIPPINE
COAST GUARD, PHILIPPINE NATIONAL POLICE MARITIME GROUP, and DEPARTMENT OF THE
INTERIOR AND LOCAL GOVERNMENT, Petitioners,
vs.
CONCERNED RESIDENTS OF MANILA BAY, represented and joined by DIVINA V. ILAS,
SABINIANO ALBARRACIN, MANUEL SANTOS, JR., DINAH DELA PEA, PAUL DENNIS
QUINTERO, MA. VICTORIA LLENOS, DONNA CALOZA, FATIMA QUITAIN, VENICE SEGARRA,
FRITZIE TANGKIA, SARAH JOELLE LINTAG, HANNIBAL AUGUSTUS BOBIS, FELIMON
SANTIAGUEL, and JAIME AGUSTIN R. OPOSA,Respondents.
RESOLUTION
VELASCO, JR., J.:
On December 18, 2008, this Court rendered a Decision in G.R. Nos. 171947-48 ordering petitioners to
clean up, rehabilitate and preserve Manila Bay in their different capacities. The fallo reads:
WHEREFORE, the petition is DENIED. The September 28, 2005 Decision of the CA in CA-G.R. CV No.
76528 and SP No. 74944 and the September 13, 2002 Decision of the RTC in Civil Case No. 1851-99 are
AFFIRMED but with MODIFICATIONS in view of subsequent developments or supervening events in the
case. The fallo of the RTC Decision shall now read:
WHEREFORE, judgment is hereby rendered ordering the abovenamed defendant-government agencies

to clean up, rehabilitate, and preserve Manila Bay, and restore and maintain its waters to SB level (Class
B sea waters per Water Classification Tables under DENR Administrative Order No. 34 [1990]) to make
them fit for swimming, skin-diving, and other forms of contact recreation.
In particular:
(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the primary agency responsible for the
conservation, management, development, and proper use of the countrys environment and
natural resources, and Sec. 19 of RA 9275, designating the DENR as the primary government
agency responsible for its enforcement and implementation, the DENR is directed to fully
implement its Operational Plan for the Manila Bay Coastal Strategy for the rehabilitation,
restoration, and conservation of the Manila Bay at the earliest possible time. It is ordered to call
regular coordination meetings with concerned government departments and agencies to ensure
the successful implementation of the aforesaid plan of action in accordance with its indicated
completion schedules.
(2) Pursuant to Title XII (Local Government) of the Administrative Code of 1987 and Sec. 25 of
the Local Government Code of 1991, the DILG, in exercising the Presidents power of general
supervision and its duty to promulgate guidelines in establishing waste management programs
under Sec. 43 of the Philippine Environment Code (PD 1152), shall direct all LGUs in Metro
Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga, and Bataan to inspect all factories,
commercial establishments, and private homes along the banks of the major river systems in their
respective areas of jurisdiction, such as but not limited to the Pasig-Marikina-San Juan Rivers,
the NCR (Paraaque-Zapote, Las Pias) Rivers, the Navotas-Malabon-Tullahan-Tenejeros
Rivers, the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus
(Cavite) River, the Laguna De Bay, and other minor rivers and waterways that eventually
discharge water into the Manila Bay; and the lands abutting the bay, to determine whether they
have wastewater treatment facilities or hygienic septic tanks as prescribed by existing laws,
ordinances, and rules and regulations. If none be found, these LGUs shall be ordered to require
non-complying establishments and homes to set up said facilities or septic tanks within a
reasonable time to prevent industrial wastes, sewage water, and human wastes from flowing into
these rivers, waterways, esteros, and the Manila Bay, under pain of closure or imposition of fines
and other sanctions.
(3) As mandated by Sec. 8 of RA 9275, the MWSS is directed to provide, install, operate, and
maintain the necessary adequate waste water treatment facilities in Metro Manila, Rizal, and
Cavite where needed at the earliest possible time.
(4) Pursuant to RA 9275, the LWUA, through the local water districts and in coordination with the
DENR, is ordered to provide, install, operate, and maintain sewerage and sanitation facilities and
the efficient and safe collection, treatment, and disposal of sewage in the provinces of Laguna,
Cavite, Bulacan, Pampanga, and Bataan where needed at the earliest possible time.
(5) Pursuant to Sec. 65 of RA 8550, the DA, through the BFAR, is ordered to improve and restore
the marine life of the Manila Bay. It is also directed to assist the LGUs in Metro Manila, Rizal,
Cavite, Laguna, Bulacan, Pampanga, and Bataan in developing, using recognized methods, the
fisheries and aquatic resources in the Manila Bay.
(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP Maritime Group, in accordance
with Sec. 124 of RA 8550, in coordination with each other, shall apprehend violators of PD 979,
RA 8550, and other existing laws and regulations designed to prevent marine pollution in the
Manila Bay.
(7) Pursuant to Secs. 2 and 6-c of EO 513 and the International Convention for the Prevention of
Pollution from Ships, the PPA is ordered to immediately adopt such measures to prevent the
discharge and dumping of solid and liquid wastes and other ship-generated wastes into the
Manila Bay waters from vessels docked at ports and apprehend the violators.
(8) The MMDA, as the lead agency and implementor of programs and projects for flood control
projects and drainage services in Metro Manila, in coordination with the DPWH, DILG, affected
LGUs, PNP Maritime Group, Housing and Urban Development Coordinating Council (HUDCC),
and other agencies, shall dismantle and remove all structures, constructions, and other
encroachments established or built in violation of RA 7279, and other applicable laws along the
Pasig-Marikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the Navotas-
Malabon-Tullahan-Tenejeros Rivers, and connecting waterways and esteros in Metro Manila. The
DPWH, as the principal implementor of programs and projects for flood control services in the
rest of the country more particularly in Bulacan, Bataan, Pampanga, Cavite, and Laguna, in
coordination with the DILG, affected LGUs, PNP Maritime Group, HUDCC, and other concerned
government agencies, shall remove and demolish all structures, constructions, and other
encroachments built in breach of RA 7279 and other applicable laws along the Meycauayan-
Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the
Laguna De Bay, and other rivers, connecting waterways, and esteros that discharge wastewater
into the Manila Bay.
In addition, the MMDA is ordered to establish, operate, and maintain a sanitary landfill, as
prescribed by RA 9003, within a period of one (1) year from finality of this Decision. On matters
within its territorial jurisdiction and in connection with the discharge of its duties on the
maintenance of sanitary landfills and like undertakings, it is also ordered to cause the
apprehension and filing of the appropriate criminal cases against violators of the respective penal
provisions of RA 9003, Sec. 27 of RA 9275 (the Clean Water Act), and other existing laws on
pollution.
(9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8 of RA 9275, within one (1) year
from finality of this Decision, determine if all licensed septic and sludge companies have the
proper facilities for the treatment and disposal of fecal sludge and sewage coming from septic
tanks. The DOH shall give the companies, if found to be non-complying, a reasonable time within
which to set up the necessary facilities under pain of cancellation of its environmental sanitation
clearance.
(10) Pursuant to Sec. 53 of PD 1152, Sec. 118 of RA 8550, and Sec. 56 of RA 9003, the DepEd
shall integrate lessons on pollution prevention, waste management, environmental protection,
and like subjects in the school curricula of all levels to inculcate in the minds and hearts of
students and, through them, their parents and friends, the importance of their duty toward
achieving and maintaining a balanced and healthful ecosystem in the Manila Bay and the entire
Philippine archipelago.
(11) The DBM shall consider incorporating an adequate budget in the General Appropriations Act
of 2010 and succeeding years to cover the expenses relating to the cleanup, restoration, and
preservation of the water quality of the Manila Bay, in line with the countrys development
objective to attain economic growth in a manner consistent with the protection, preservation, and
revival of our marine waters.
(12) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH, DBM, PCG,
PNP Maritime Group, DILG, and also of MWSS, LWUA, and PPA, in line with the principle of
"continuing mandamus," shall, from finality of this Decision, each submit to the Court a quarterly
progressive report of the activities undertaken in accordance with this Decision.
SO ORDERED.
The government agencies did not file any motion for reconsideration and the Decision became final in
January 2009.
The case is now in the execution phase of the final and executory December 18, 2008 Decision. The
Manila Bay Advisory Committee was created to receive and evaluate the quarterly progressive reports on
the activities undertaken by the agencies in accordance with said decision and to monitor the execution
phase.
In the absence of specific completion periods, the Committee recommended that time frames be set for
the agencies to perform their assigned tasks. This may be viewed as an encroachment over the powers
and functions of the Executive Branch headed by the President of the Philippines.
This view is misplaced.
The issuance of subsequent resolutions by the Court is simply an exercise of judicial power under Art. VIII
of the Constitution, because the execution of the Decision is but an integral part of the adjudicative
function of the Court. None of the agencies ever questioned the power of the Court to implement the
December 18, 2008 Decision nor has any of them raised the alleged encroachment by the Court over
executive functions.
While additional activities are required of the agencies like submission of plans of action, data or status
reports, these directives are but part and parcel of the execution stage of a final decision under Rule 39 of
the Rules of Court. Section 47 of Rule 39 reads:
Section 47. Effect of judgments or final orders.The effect of a judgment or final order rendered by a
court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows:
xxxx
(c) In any other litigation between the same parties of their successors in interest, that only is deemed to
have been adjudged in a former judgment or final order which appears upon its face to have been so
adjudged, or which was actually and necessarily included therein or necessary thereto. (Emphasis
supplied.)
It is clear that the final judgment includes not only what appears upon its face to have been so adjudged
but also those matters "actually and necessarily included therein or necessary thereto." Certainly, any
activity that is needed to fully implement a final judgment is necessarily encompassed by said judgment.
Moreover, the submission of periodic reports is sanctioned by Secs. 7 and 8, Rule 8 of the Rules of
Procedure for Environmental cases:
Sec. 7. Judgment.If warranted, the court shall grant the privilege of the writ of continuing mandamus
requiring respondent to perform an act or series of acts until the judgment is fully satisfied and to grant
such other reliefs as may be warranted resulting from the wrongful or illegal acts of the respondent. The
court shall require the respondent to submit periodic reports detailing the progress and execution of the
judgment, and the court may, by itself or through a commissioner or the appropriate government agency,
evaluate and monitor compliance. The petitioner may submit its comments or observations on the
execution of the judgment.
Sec. 8. Return of the writ.The periodic reports submitted by the respondent detailing compliance with
the judgment shall be contained in partial returns of the writ. Upon full satisfaction of the judgment, a final
return of the writ shall be made to the court by the respondent. If the court finds that the judgment has
been fully implemented, the satisfaction of judgment shall be entered in the court docket. (Emphasis
supplied.)
With the final and executory judgment in MMDA, the writ of continuing mandamus issued in MMDA
means that until petitioner-agencies have shown full compliance with the Courts orders, the Court
exercises continuing jurisdiction over them until full execution of the judgment.
There being no encroachment over executive functions to speak of, We shall now proceed to the
recommendation of the Manila Bay Advisory Committee.
Several problems were encountered by the Manila Bay Advisory Committee.2 An evaluation of the
quarterly progressive reports has shown that (1) there are voluminous quarterly progressive reports that
are being submitted; (2) petitioner-agencies do not have a uniform manner of reporting their cleanup,
rehabilitation and preservation activities; (3) as yet no definite deadlines have been set by petitioner
DENR as to petitioner-agencies timeframe for their respective duties; (4) as of June 2010 there has been
a change in leadership in both the national and local levels; and (5) some agencies have encountered
difficulties in complying with the Courts directives.
In order to implement the afore-quoted Decision, certain directives have to be issued by the Court to
address the said concerns.
Acting on the recommendation of the Manila Bay Advisory Committee, the Court hereby resolves
to ORDER the following:
(1) The Department of Environment and Natural Resources (DENR), as lead agency in the Philippine
Clean Water Act of 2004, shall submit to the Court on or before June 30, 2011 the updated Operational
Plan for the Manila Bay Coastal Strategy.
The DENR is ordered to submit summarized data on the overall quality of Manila Bay waters for all four
quarters of 2010 on or before June 30, 2011.
The DENR is further ordered to submit the names and addresses of persons and companies in Metro
Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga and Bataan that generate toxic and hazardous waste
on or before September 30, 2011.
(2) On or before June 30, 2011, the Department of the Interior and Local Government (DILG) shall order
the Mayors of all cities in Metro Manila; the Governors of Rizal, Laguna, Cavite, Bulacan, Pampanga and
Bataan; and the Mayors of all the cities and towns in said provinces to inspect all factories, commercial
establishments and private homes along the banks of the major river systemssuch as but not limited to
the Pasig-Marikina-San Juan Rivers, the National Capital Region (Paranaque-Zapote, Las Pinas) Rivers,
the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-Obando (Bulacan) Rivers, the
Talisay (Bataan) River, the Imus (Cavite) River, and the Laguna De Bayand other minor rivers and
waterways within their jurisdiction that eventually discharge water into the Manila Bay and the lands
abutting it, to determine if they have wastewater treatment facilities and/or hygienic septic tanks, as
prescribed by existing laws, ordinances, rules and regulations. Said local government unit (LGU) officials
are given up to September 30, 2011 to finish the inspection of said establishments and houses.
In case of non-compliance, the LGU officials shall take appropriate action to ensure compliance by non-
complying factories, commercial establishments and private homes with said law, rules and regulations
requiring the construction or installment of wastewater treatment facilities or hygienic septic tanks.
The aforementioned governors and mayors shall submit to the DILG on or before December 31, 2011
their respective compliance reports which will contain the names and addresses or offices of the owners
of all the non-complying factories, commercial establishments and private homes, copy furnished the
concerned environmental agency, be it the local DENR office or the Laguna Lake Development Authority.
The DILG is required to submit a five-year plan of action that will contain measures intended to ensure
compliance of all non-complying factories, commercial establishments, and private homes.
On or before June 30, 2011, the DILG and the mayors of all cities in Metro Manila shall consider providing
land for the wastewater facilities of the Metropolitan Waterworks and Sewerage System (MWSS) or its
concessionaires (Maynilad and Manila Water, Inc.) within their respective jurisdictions.
(3) The MWSS shall submit to the Court on or before June 30, 2011 the list of areas in Metro Manila,
Rizal and Cavite that do not have the necessary wastewater treatment facilities. Within the same period,
the concessionaires of the MWSS shall submit their plans and projects for the construction of wastewater
treatment facilities in all the aforesaid areas and the completion period for said facilities, which shall not
go beyond 2037.
On or before June 30, 2011, the MWSS is further required to have its two concessionaires submit a report
on the amount collected as sewerage fees in their respective areas of operation as of December 31,
2010.
(4) The Local Water Utilities Administration is ordered to submit on or before September 30, 2011 its plan
to provide, install, operate and maintain sewerage and sanitation facilities in said cities and towns and the
completion period for said works, which shall be fully implemented by December 31, 2020.
(5) The Department of Agriculture (DA), through the Bureau of Fisheries and Aquatic Resources, shall
submit to the Court on or before June 30, 2011 a report on areas in Manila Bay where marine life has to
be restored or improved and the assistance it has extended to the LGUs in Metro Manila, Rizal, Cavite,
Laguna, Bulacan, Pampanga and Bataan in developing the fisheries and aquatic resources in Manila
Bay. The report shall contain monitoring data on the marine life in said areas. Within the same period, it
shall submit its five-year plan to restore and improve the marine life in Manila Bay, its future activities to
assist the aforementioned LGUs for that purpose, and the completion period for said undertakings.
The DA shall submit to the Court on or before September 30, 2011 the baseline data as of September 30,
2010 on the pollution loading into the Manila Bay system from agricultural and livestock sources.
(6) The Philippine Ports Authority (PPA) shall incorporate in its quarterly reports the list of violators it has
apprehended and the status of their cases. The PPA is further ordered to include in its report the names,
make and capacity of the ships that dock in PPA ports. The PPA shall submit to the Court on or before
June 30, 2011 the measures it intends to undertake to implement its compliance with paragraph 7 of the
dispositive portion of the MMDA Decision and the completion dates of such measures.
The PPA should include in its report the activities of its concessionaire that collects and disposes of the
solid and liquid wastes and other ship-generated wastes, which shall state the names, make and capacity
of the ships serviced by it since August 2003 up to the present date, the dates the ships docked at PPA
ports, the number of days the ship was at sea with the corresponding number of passengers and crew
per trip, the volume of solid, liquid and other wastes collected from said ships, the treatment undertaken
and the disposal site for said wastes.
(7) The Philippine National Police (PNP) Maritime Group shall submit on or before June 30, 2011 its five-
year plan of action on the measures and activities it intends to undertake to apprehend the violators of
Republic Act No. (RA) 8550 or the Philippine Fisheries Code of 1998 and other pertinent laws, ordinances
and regulations to prevent marine pollution in Manila Bay and to ensure the successful prosecution of
violators.
The Philippine Coast Guard shall likewise submit on or before June 30, 2011 its five-year plan of action
on the measures and activities they intend to undertake to apprehend the violators of Presidential Decree
No. 979 or the Marine Pollution Decree of 1976 and RA 9993 or the Philippine Coast Guard Law of 2009
and other pertinent laws and regulations to prevent marine pollution in Manila Bay and to ensure the
successful prosecution of violators.
(8) The Metropolitan Manila Development Authority (MMDA) shall submit to the Court on or before June
30, 2011 the names and addresses of the informal settlers in Metro Manila who, as of December 31,
2010, own and occupy houses, structures, constructions and other encroachments established or built
along the Pasig-Marikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the Navotas-
Malabon-Tullahan-Tenejeros Rivers, and connecting waterways and esteros, in violation of RA 7279 and
other applicable laws. On or before June 30, 2011, the MMDA shall submit its plan for the removal of said
informal settlers and the demolition of the aforesaid houses, structures, constructions and
encroachments, as well as the completion dates for said activities, which shall be fully implemented not
later than December 31, 2015.
The MMDA is ordered to submit a status report, within thirty (30) days from receipt of this Resolution, on
the establishment of a sanitary landfill facility for Metro Manila in compliance with the standards under RA
9003 or the Ecological Solid Waste Management Act.
On or before June 30, 2011, the MMDA shall submit a report of the location of open and controlled dumps
in Metro Manila whose operations are illegal after February 21, 2006, 3 pursuant to Secs. 36 and 37 of RA
9003, and its plan for the closure of these open and controlled dumps to be accomplished not later than
December 31, 2012. Also, on or before June 30, 2011, the DENR Secretary, as Chairperson of the
National Solid Waste Management Commission (NSWMC), shall submit a report on the location of all
open and controlled dumps in Rizal, Cavite, Laguna, Bulacan, Pampanga and Bataan.
On or before June 30, 2011, the DENR Secretary, in his capacity as NSWMC Chairperson, shall submit a
report on whether or not the following landfills strictly comply with Secs. 41 and 42 of RA 9003 on the
establishment and operation of sanitary landfills, to wit:
National Capital Region
1. Navotas SLF (PhilEco), Brgy. Tanza (New Site), Navotas City
2. Payatas Controlled Dumpsite, Barangay Payatas, Quezon City
Region III
3. Sitio Coral, Brgy. Matictic, Norzagaray, Bulacan
4. Sitio Tiakad, Brgy. San Mateo, Norzagaray, Bulacan
5. Brgy. Minuyan, San Jose del Monte City, Bulacan
6. Brgy. Mapalad, Santa Rosa, Nueva Ecija
7. Sub-zone Kalangitan, Clark Capas, Tarlac Special Economic Zone
Region IV-A
8. Kalayaan (Longos), Laguna
9. Brgy. Sto. Nino, San Pablo City, Laguna
10. Brgy. San Antonio (Pilotage SLF), San Pedro, Laguna
11. Morong, Rizal
12. Sitio Lukutan, Brgy. San Isidro, Rodriguez (Montalban), Rizal (ISWIMS)
13. Brgy. Pintong Bukawe, San Mateo, Rizal (SMSLFDC)
On or before June 30, 2011, the MMDA and the seventeen (17) LGUs in Metro Manila are ordered to
jointly submit a report on the average amount of garbage collected monthly per district in all the cities in
Metro Manila from January 2009 up to December 31, 2010 vis--vis the average amount of garbage
disposed monthly in landfills and dumpsites. In its quarterly report for the last quarter of 2010 and
thereafter, MMDA shall report on the apprehensions for violations of the penal provisions of RA 9003, RA
9275 and other laws on pollution for the said period.
On or before June 30, 2011, the DPWH and the LGUs in Rizal, Laguna, Cavite, Bulacan, Pampanga, and
Bataan shall submit the names and addresses of the informal settlers in their respective areas who, as of
September 30, 2010, own or occupy houses, structures, constructions, and other encroachments built
along the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite)
River, the Laguna de Bay, and other rivers, connecting waterways and esteros that discharge wastewater
into the Manila Bay, in breach of RA 7279 and other applicable laws. On or before June 30, 2011, the
DPWH and the aforesaid LGUs shall jointly submit their plan for the removal of said informal settlers and
the demolition of the aforesaid structures, constructions and encroachments, as well as the completion
dates for such activities which shall be implemented not later than December 31, 2012.
(9) The Department of Health (DOH) shall submit to the Court on or before June 30, 2011 the names and
addresses of the owners of septic and sludge companies including those that do not have the proper
facilities for the treatment and disposal of fecal sludge and sewage coming from septic tanks.
The DOH shall implement rules and regulations on Environmental Sanitation Clearances and shall
require companies to procure a license to operate from the DOH.
The DOH and DENR-Environmental Management Bureau shall develop a toxic and hazardous waste
management system by June 30, 2011 which will implement segregation of hospital/toxic/hazardous
wastes and prevent mixing with municipal solid waste.
On or before June 30, 2011, the DOH shall submit a plan of action to ensure that the said companies
have proper disposal facilities and the completion dates of compliance.1avvphi1
(10) The Department of Education (DepEd) shall submit to the Court on or before May 31, 2011 a report
on the specific subjects on pollution prevention, waste management, environmental protection,
environmental laws and the like that it has integrated into the school curricula in all levels for the school
year 2011-2012.
On or before June 30, 2011, the DepEd shall also submit its plan of action to ensure compliance of all the
schools under its supervision with respect to the integration of the aforementioned subjects in the school
curricula which shall be fully implemented by June 30, 2012.
(11) All the agencies are required to submit their quarterly reports electronically using the forms below.
The agencies may add other key performance indicators that they have identified.
SO ORDERED.

Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
See dissenting opinion I join the dissent of J. Carpio

ANTONIO T. CARPIO CONCHITA CARPIO MORALES
ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTRO

I join the dissent of J. Carpio

DIOSDADO M. PERALTA
ARTURO D. BRION
Associate Justice
Associate Justice
LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO
ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

See dissenting opinion

Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the
above Resolution had been reached in consultation before the case was assigned to the writer of the
RENATO C. CORONA
Chief Justice
Footnotes
1 Now the Department of Education (DepEd).
2On February 10, 2009, the Court En Banc approved a resolution creating an Advisory
Committee "that will verify the reports of the government agencies tasked to clean up the Manila
Bay." It is composed of two members of the Court and three technical experts:
Hon. Presbitero J. Velasco, Jr.

Chairperson and ponente of MMDA vs. Concerned Residents of Manila
Hon. Jose Midas P. Marquez

Court Administrator
Vice-Chairperson
Members/Technical Experts:
Dr. Gil S. Jacinto

Former Director, UP Marine Science Institute
Dr. Elisea G. Gozun

Chair of Earth Day Network and Former DENR Secretary
Dr. Antonio G.M. La Via
Former DENR Undersecretary
Dean of the Ateneo School of Government
3Our Decision in Metropolitan Manila Development Authority v. Concerned Residents of Manila

Bay, G.R. Nos. 171947-48, December 18, 2008, 574 SCRA 661, 690, states: "RA 9003 took
effect on February 15, 2001 and the adverted grace period of five (5) years [in Sec. 37 of RA
9003] which ended on February 21, 2006 has come and gone, but no single sanitary landfill
which strictly complies with the prescribed standards under RA 9003 has yet been set up."
(Emphasis supplied.)
DISSENTING OPINION
CARPIO, J.:
The Resolution contains the proposed directives of the Manila Bay Advisory Committee to the concerned
agencies1 and local government units (LGUs) for the implementation of the 18 December 2008 Decision
of the Court in this case.
Among the directives stated in the Resolution is for the affected agencies to submit to the Court their
plans of action and status reports, thus:
The Department of Environment and Natural Resources (DENR), as lead agency in the Philippine Clean
Water Act of 2004, shall submit to the Court on or before June 30, 2011 the updated Operational Plan for
the Manila Bay Coastal Strategy (OPMBCS);2
The DILG is required to submit a five-year plan of action that will contain measures intended to
ensure compliance of all non-complying factories, commercial establishments, and private
homes;3
The MWSS shall submit to the Court on or before June 30, 2011 the list of areas in Metro Manila, Rizal
and Cavite that do not have the necessary wastewater treatment facilities. Within the same period, the
concessionaires of the MWSS shall submit their plans and projects for the construction of
wastewater treatment facilities in all the aforesaid areas and the completion period for said
facilities, which shall not go beyond 2020;4
The Local Water Utilities Administration (LWUA) shall submit to the Court on or before June 30, 2011 the
list of cities and towns in Laguna, Cavite, Bulacan, Pampanga, and Bataan that do not have sewerage
and sanitation facilities. LWUA is further ordered to submit on or before September 30, 2011 its plan
to provide, install, operate and maintain sewerage and sanitation facilities in said cities and towns
and the completion period for said works which shall be fully implemented by December 31,
2020;5
The Department of Agriculture (DA), through the Bureau of Fisheries and Aquatic Resources (BFAR),
shall submit to the Court on or before June 30, 2011 a report on areas in Manila Bay where marine life
has to be restored or improved and the assistance it has extended to the LGUs in Metro Manila, Rizal,
Cavite, Laguna, Bulacan, Pampanga and Bataan in developing the fisheries and aquatic resources in
Manila Bay. The report shall contain monitoring data on the marine life in said areas. Within the same
period, it shall submit its five-year plan to restore and improve the marine life in Manila Bay, its
future activities to assist the aforementioned LGUs for that purpose, and the completion period
for said undertakings;6
The Philippine Ports Authority (PPA) shall incorporate in its quarterly reports the list of violators it has
apprehended and the status of their cases. The PPA is further ordered to include in its report the names,
make and capacity of the ships that dock in PPA ports. The PPA shall submit to the Court on or before
June 30, 2011 the measures it intends to undertake to implement its compliance with paragraph 7
of the dispositive portion of the MMDA Decision and the completion dates of such measures;7
The Philippine National Police (PNP) Maritime Group shall submit on or before June 30, 2011 its
five-year plan of action on the measures and activities they intend to undertake to apprehend the
violators of RA 8550 or the Philippine Fisheries Code of 1998 and other pertinent laws, ordinances and
regulations to prevent marine pollution in Manila Bay and to ensure the successful prosecution of
violators;8
The Philippine Coast Guard (PCG) shall likewise submit on or before June 30, 2011 its five-year plan
of action on the measures and activities they intend to undertake to apprehend the violators of
Presidential Decree (PD) 979 or the Marine Pollution Decree of 1976 and RA 9993 or the Philippine
Coast Guard Law of 2009and other pertinent laws and regulations to prevent marine pollution in Manila
Bay and to ensure the successful prosecution of violators;9
The Metropolitan Manila Development Authority (MMDA) shall submit to the Court on or before June
30, 2011 the names and addresses of the informal settlers in Metro Manila who own and occupy
houses, structures, constructions and other encroachments established or built in violation of RA
7279 and other applicable laws along the Pasig-Marikina-San Juan Rivers, the NCR (Paraaque-
Zapote, Las Pias) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, and connecting waterways
and esteros as of December 31, 2010. On or before the same date, the MMDA shall submit its plan for
the removal of said informal settlers and the demolition of the aforesaid houses, structures,
constructions and encroachments, as well as the completion dates for said activities which shall
be fully implemented not later than December 31, 2015;10
[T]he DPWH and the aforesaid LGUs shall jointly submit its plan for the removal of said informal
settlers and the demolition of the aforesaid structures, constructions and encroachments, as well
as the completion dates for such activities which shall be implemented not later than December
31, 2012;11
[T]he DOH shall submit a plan of action to ensure that the said companies have proper disposal
facilities and the completion dates of compliance;12
On or before June 30, 2011, the DepEd shall also submit its plan of action to ensure compliance of
all the schools under its supervision with respect to the integration of the aforementioned
subjects in the school curricula which shall be fully implemented by June 30, 2012;13 (Emphasis
supplied)
What is the purpose of requiring these agencies to submit to the Court their plans of action and status
reports? Are these plans to be approved or disapproved by the Court? The Court does not have the
competence or even the jurisdiction to evaluate these plans which involves technical matters 14 best left to
the expertise of the concerned agencies.
The Resolution also requires that the concerned agencies shall "submit [to the Court] their quarterly
reports electronically x x x."15 Thus, the directive for the concerned agencies to submit to the Court
their quarterly reports is a continuing obligation which extends even beyond the year 2011. 16
The Court is now arrogating unto itself two constitutional powers exclusively vested in the President. First,
the Constitution provides that "executive power shall be vested in the President."17 This means that
neither the Judiciary nor the Legislature can exercise executive power for executive power is the
exclusive domain of the President. Second, the Constitution provides that the President shall "have
control of all the executive departments, bureaus, and offices."18 Neither the Judiciary nor the
Legislature can exercise control or even supervision over executive departments, bureaus, and offices.
Clearly, the Resolution constitutes an intrusion of the Judiciary into the exclusive domain of the Executive.
In the guise of implementing the 18 December 2008 Decision through the Resolution, the Court is in
effect supervising and directing the different government agencies and LGUs concerned.
In Noblejas v. Teehankee,19 it was held that the Court cannot be required to exercise administrative
functions such as supervision over executive officials. The issue in that case was whether the
Commissioner of Land Registration may only be investigated by the Supreme Court, in view of the
conferment upon him by law (Republic Act No. 1151) of the rank and privileges of a Judge of the Court of
First Instance. The Court, answering in the negative, stated:
To adopt petitioner's theory, therefore, would mean placing upon the Supreme Court the duty of
investigating and disciplining all these officials whose functions are plainly executive and the consequent
curtailment by mere implication from the Legislative grant, of the President's power to discipline and
remove administrative officials who are presidential appointees, and which the Constitution expressly
place under the President's supervision and control.
xxx
But the more fundamental objection to the stand of petitioner Noblejas is that, if the Legislature had really
intended to include in the general grant of "privileges" or "rank and privileges of Judges of the Court of
First Instance" the right to be investigated by the Supreme Court, and to be suspended or removed only
upon recommendation of that Court, then such grant of privilege would be unconstitutional, since it
would violate the fundamental doctrine of separation of powers, by charging this court with the
administrative function of supervisory control over executive officials, and simultaneously
reducing pro tanto the control of the Chief Executive over such officials.20 (Boldfacing supplied)
Likewise, in this case, the directives in the Resolution are administrative in nature and circumvent the
constitutional provision which prohibits Supreme Court members from performing quasi-judicial or
administrative functions. Section 12, Article VIII of the 1987 Constitution provides:
SEC. 12. The members of the Supreme Court and of other courts established by law shall not be
designated to any agency performing quasi-judicial or administrative functions.
Thus, in the case of In Re: Designation of Judge Manzano as Member of the Ilocos Norte Provincial
Committee on Justice,21 the Court invalidated the designation of a judge as member of the Ilocos Norte
Provincial Committee on Justice, which was tasked to receive complaints and to make recommendations
for the speedy disposition of cases of detainees. The Court held that the committee performs
administrative functions22 which are prohibited under Section 12, Article VIII of the Constitution.
As early as the 1932 case of Manila Electric Co. v. Pasay Transportation Co.,23 this Court has already
emphasized that the Supreme Court should only exercise judicial power and should not assume any duty
which does not pertain to the administering of judicial functions. In that case, a petition was filed
requesting the members of the Supreme Court, sitting as a board of arbitrators, to fix the terms and the
compensation to be paid to Manila Electric Company for the use of right of way. The Court held that it
would be improper and illegal for the members of the Supreme Court, sitting as a board of arbitrators,
whose decision of a majority shall be final, to act on the petition of Manila Electric Company. The Court
explained:
We run counter to this dilemma. Either the members of the Supreme Court, sitting as a board of
arbitrators, exercise judicial functions, or as members of the Supreme Court, sitting as a board of
arbitrators, exercise administrative or quasi judicial functions. The first case would appear not to fall within
the jurisdiction granted the Supreme Court. Even conceding that it does, it would presuppose the right to
bring the matter in dispute before the courts, for any other construction would tend to oust the courts of
jurisdiction and render the award a nullity. But if this be the proper construction, we would then have the
anomaly of a decision by the members of the Supreme Court, sitting as a board of arbitrators, taken
therefrom to the courts and eventually coming before the Supreme Court, where the Supreme Court
would review the decision of its members acting as arbitrators. Or in the second case, if the functions
performed by the members of the Supreme Court, sitting as a board of arbitrators, be considered as
administrative or quasi judicial in nature, that would result in the performance of duties which the
members of the Supreme Court could not lawfully take it upon themselves to perform. The present
petition also furnishes an apt illustration of another anomaly, for we find the Supreme Court as a court
asked to determine if the members of the court may be constituted a board of arbitrators, which is not a
court at all.
The Supreme Court of the Philippine Islands represents one of the three divisions of power in our
government. It is judicial power and judicial power only which is exercised by the Supreme Court. Just as
the Supreme Court, as the guardian of constitutional rights, should not sanction usurpations by any other
department of the government, so should it as strictly confine its own sphere of influence to the powers
expressly or by implication conferred on it by the Organic Act. The Supreme Court and its members
should not and cannot be required to exercise any power or to perform any trust or to assume any duty
not pertaining to or connected with the administering of judicial functions.24
Furthermore, the Resolution orders some LGU officials to inspect the establishments and houses along
major river banks and to "take appropriate action to ensure compliance by non-complying factories,
commercial establishments and private homes with said law, rules and regulations requiring the
construction or installment of wastewater treatment facilities or hygienic septic tanks."25 The LGU
officials are also directed to "submit to the DILG on or before December 31, 2011 their respective
compliance reports which shall contain the names and addresses or offices of the owners of all the non-
complying factories, commercial establishments and private homes."26 Furthermore, the Resolution
mandates that on or before 30 June 2011, the DILG and the mayors of all cities in Metro Manila should
"consider providing land for the wastewater facilities of the Metropolitan Waterworks and Sewerage
System (MWSS) or its concessionaires (Maynilad and Manila Water Inc.) within their respective
jurisdictions."27 The Court is in effect ordering these LGU officials how to do their job and even
gives a deadline for their compliance. Again, this is a usurpation of the power of the President to
supervise LGUs under the Constitution and existing laws.
Section 4, Article X of the 1987 Constitution provides that: "The President of the Philippines shall
exercise general supervision over local governments x x x."28 Under the Local Government Code of
1991,29 the President exercises general supervision over LGUs, thus:
SECTION 25. National Supervision over Local Government Units. (a) Consistent with the basic policy
on local autonomy, the President shall exercise general supervision over local government units to
ensure that their acts are within the scope of their prescribed powers and functions.
The President shall exercise supervisory authority directly over provinces, highly urbanized cities and
independent component cities; through the province with respect to component cities and municipalities;
and through the city and municipality with respect to barangays. (Emphasis supplied)
The Resolution constitutes judicial overreach by usurping and performing executive functions.
The Court must refrain from overstepping its boundaries by taking over the functions of an equal branch
of the government the Executive. The Court should abstain from exercising any function which is not
strictly judicial in character and is not clearly conferred on it by the Constitution.30 Indeed, as stated by
Justice J.B.L. Reyes inNoblejas v. Teehankee,31 "the Supreme Court of the Philippines and its members
should not and can not be required to exercise any power or to perform any trust or to assume any duty
not pertaining to or connected with the administration of judicial functions."32
The directives in the Resolution constitute a judicial encroachment of an executive function which clearly
violates the system of separation of powers that inheres in our democratic republican government. The
principle of separation of powers between the Executive, Legislative, and Judicial branches of
government is part of the basic structure of the Philippine Constitution. Thus, the 1987 Constitution
provides that: (a) the legislative power shall be vested in the Congress of the Philippines; 33 (b) the
executive power shall be vested in the President of the Philippines;34 and (c) the judicial power shall be
vested in one Supreme Court and in such lower courts as may be established. 35
Since the Supreme Court is only granted judicial power, it should not attempt to assume or be compelled
to perform non-judicial functions.36 Judicial power is defined under Section 1, Article VIII of the 1987
Constitution as that which "includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government." The Resolution contains directives which are outside the ambit of the
Court's judicial functions.
The principle of separation of powers is explained by the Court in the leading case of Angara v. Electoral
Commission:37
The separation of powers is a fundamental principle in our system of government. It obtains not through
express provision but by actual division in our Constitution. Each department of the government has
exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does
not follow from the fact that the three powers are to be kept separate and distinct that the Constitution
intended them to be absolutely unrestrained and independent of each other. The Constitution has
provided for an elaborate system of checks and balances to secure coordination in the workings of the
various departments of the government. x x x And the judiciary in turn, with the Supreme Court as the
final arbiter, effectively checks the other department in its exercise of its power to determine the law, and
hence to declare executive and legislative acts void if violative of the Constitution. 38
Even the ponente is passionate about according respect to the system of separation of powers between
the three equal branches of the government. In his dissenting opinion in the 2008 case of Province of
North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain
(GRP),39 Justice Velasco emphatically stated:
Separation of Powers to be Guarded
Over and above the foregoing considerations, however, is the matter of separation of powers which would
likely be disturbed should the Court meander into alien territory of the executive and dictate how the final
shape of the peace agreement with the MILF should look like. The system of separation of powers
contemplates the division of the functions of government into its three (3) branches: the
legislative which is empowered to make laws; the executive which is required to carry out the law;
and the judiciary which is charged with interpreting the law. Consequent to actual delineation of
power, each branch of government is entitled to be left alone to discharge its duties as it sees fit.
Being one such branch, the judiciary, as Justice Laurel asserted in Planas v. Gil, "will neither
direct nor restrain executive [or legislative action]." Expressed in another perspective, the system
of separated powers is designed to restrain one branch from inappropriate interference in the
business, or intruding upon the central prerogatives, of another branch; it is a blend of courtesy
and caution, "a self-executing safeguard against the encroachment or aggrandizement of one
branch at the expense of the other." x x x
Under our constitutional set up, there cannot be any serious dispute that the maintenance of the peace,
insuring domestic tranquility and the suppression of violence are the domain and responsibility of the
executive. Now then, if it be important to restrict the great departments of government to the
exercise of their appointed powers, it follows, as a logical corollary, equally important, that one
branch should be left completely independent of the others, independent not in the sense that the
three shall not cooperate in the common end of carrying into effect the purposes of the
constitution, but in the sense that the acts of each shall never be controlled by or subjected to the
influence of either of the branches.40 (Emphasis supplied)
Indeed, adherence to the principle of separation of powers which is enshrined in our Constitution is
essential to prevent tyranny by prohibiting the concentration of the sovereign powers of state in one
body.41 Considering that executive power is exclusively vested in the President of the Philippines, the
Judiciary should neither undermine such exercise of executive power by the President nor arrogate
executive power unto itself. The Judiciary must confine itself to the exercise of judicial functions and not
encroach upon the functions of the other branches of the government.
ACCORDINGLY, I vote against the approval of the Resolution.
ANTONIO T. CARPIO
Associate Justice
Footnotes
1Department of Environment and Natural Resources (DENR), Department of Interior and Local
Government (DILG), ), Metropolitan Waterworks and Sewerage System (MWSS), Local Water
Utilities Administration (LWUA), Department of Agriculture (DA), Philippine Ports Authority (PPA),
Philippine National Police (PNP), Metropolitan Manila Development Authority (MMDA),
Department of Health (DOH), Department of Education (DepEd), and Department of Budget and
Management (DBM).
14For instance, the Resolution orders the PPA to "include in its report the activities of the
concessionaire that collects and disposes of the solid and liquid wastes and other ship-generated
wastes, which shall state the names, make and capacity of the ships serviced by it since August
2003 up to the present date, the dates the ships docked at PPA ports, the number of days the
ship was at sea with the corresponding number of passengers and crew per trip, the volume of
solid, liquid and ship-generated wastes collected from said ships, the treatment undertaken and
the disposal site for said wastes;" Resolution, pp. 7-8.
16For example, the Resolution directs that "[i]n its quarterly report for the last quarter of 2010
andthereafter, MMDA shall report on the apprehensions for violations of the penal provisions of
RA 9003, RA 9275 and other laws on pollution for the said period; Resolution, p. 10. (Emphasis
supplied.)
17 Constitution, Art. VII, Sec. 1.
19 131 Phil. 931 (1968).
20 Id. at. 934-935.

21 248 Phil. 487 (1988).
22Administrative functions are "those which involve the regulation and control over the conduct
and affairs of individuals for their own welfare and the promulgation of rules and regulations to
better carry out the policy of the legislature or such as are devolved upon the administrative
agency by the organic law of its existence." Id. at 491.
23 57 Phil 600 (1932).
29 Republic Act No. 7160.
30 Manila Electric Co. v. Pasay Transportation Co., supra note 23.
31 Supra note 19.
32 Id. at 936, citing Manila Electric Co. v. Pasay Transportation Co., 57 Phil. 600, 605 (1932).
33 Constitution, Art. VI, Sec. 1.
35 Constitution, Art. VIII, Sec. 1.
36 J. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary 828 (1996).
37 63 Phil. 139 (1936).
38 Id. at 156-157.
39 G.R. Nos. 183591, 183752, 183893, 183951 & 183962, 14 October 2008, 568 SCRA 402.
40 Dissenting Opinion, id. at 669-670. (Citations omitted)
41S. Carlota, The Three Most Important Features of the Philippine Legal System that Others
Should Understand, in IALS Conference Learning from Each Other: Enriching the Law School
Curriculum in an Interrelated World 177 <www.ialsnet.org/meeting/enriching/carlota.pdf> (visited
5 November 2010).
DISSENTING OPINION
SERENO, J.:
"The judicial whistle needs to be blown for a purpose and with caution. It needs to be remembered that
the Court cannot run the government. The Court has the duty of implementing constitutional safeguards
that protect individual rights but they cannot push back the limits of the Constitution to accommodate the
challenged violation."1
These are the words of Justice Anand of the Supreme Court of India, from which court the idea of a
continuing mandatory injunction for environmental cases was drawn by the Philippine Supreme Court.
These words express alarm that the Indian judiciary has already taken on the role of running the
government in environmental cases. A similar situation would result in the Philippines were the majority
Resolution to be adopted. Despite having the best of intentions to ensure compliance by petitioners with
their corresponding statutory mandates in an urgent manner, this Court has unfortunately encroached
upon prerogatives solely to be exercised by the President and by Congress.
On 18 December 2008, the Court promulgated its decision in MMDA v. Concerned Residents of Manila
Bay, G.R. Nos. 171947-48, denying the petition of the government agencies, defendants in Civil Case No.
1851-99. It held that the Court of Appeals, subject to some modifications, was correct in affirming the 13
September 2002 Decision of the Regional Trial Court in Civil Case No. 1851-99. It ordered "the
abovenamed defendant-government agencies to clean up, rehabilitate, and preserve Manila Bay, and
restore and maintain its waters to SB level (Class B sea waters per Water Classification Tables under
DENR Administrative Order No. 34 [1990]) to make them fit for swimming, skin-diving, and other forms of
contact recreation."
The Court further issued each of the aforementioned agencies specific orders to comply with their
statutory mandate.2 Pursuant to the judgment above, the Court established its own Manila Bay Advisory
Committee. Upon the recommendations of the said Committee, the present Resolution was issued. It
encompasses several of the specific instructions laid out by the court in the original case, but also goes
further by requiring reports and updates from the said government agencies, and setting deadlines for the
submission thereof.
I find these directives in the Majority Resolution patently irreconcilable with basic constitutional doctrines
and with the legislative mechanisms already in place, such as the Administrative Code and the Local
Government Code, which explicitly grant control and supervision over these agencies to the President
alone, and to no one else. For these reasons, I respectfully dissent from the Majority Resolution.
In issuing these directives, the Court has encroached upon the exclusive authority of the Executive
Department and violated the doctrine of Separation of Powers
The Resolution assigned the Department of Natural Resources as the primary agency for environment
protection and required the implementation of its Operational Plan for the Manila Bay Coastal Strategy. It
ordered the DENR to submit the updated operational plan directly to the Court; to summarize data on the
quality of Manila Bay waters; and to "submit the names and addresses of persons and companiesthat
generate toxic or hazardous waste on or before September 30, 2011."
The Department of the Interior and Local Government is directed to "order the Mayors of all cities in Metro
Manila; the Governors of Rizal, Laguna, Cavite, Bulacan, Pampanga and Bataan; and the Mayors of all
the cities and towns in said provinces to inspect all factories, commercial establishments and private
homes along the banks of the major river systems" to determine if they have wastewater treatment
facilities, on or before 30 June 2011. The LGUs are given a deadline of 30 September 2011 to finish the
inspection. In cooperation with the Department of Public Works and Highways (DPWH), these local
governments are required to submit their plan for the removal of informal settlers and encroachments
which are in violation of Republic Act No. 7279. The said demolition must take place not later than 31
December 2012.
The Metropolitan Waterworks and Sewerage System (MWSS) is required to submit its plans for the
construction of wastewater treatment facilities in areas where needed, the completion period for which
shall not go beyond the year 2020. On or before 30 June 2011, the MWSS is further required to have its
two concessionaires submit a report on the amount collected as sewerage fees. The Local Water Utilities
Administration (LWUA) is ordered to submit on or before 30 September 2011 its plan to install and
operate sewerage and sanitation facilities in the towns and cities where needed, which must be fully
implemented by 31 December 2020.
The Department of Agriculture and the Bureau of Aquatic Fisheries and Resources are ordered to submit
on or before 30 June 2011 a list of areas where marine life in Manila Bay has improved, and the
assistance extended to different Local Government Units in this regard. The Philippine Ports Authority
(PPA) is ordered to report the names, make, and capacity of each ship that would dock in PPA ports; the
days they docked and the days they were at sea; the activities of the concessionaire that would collect
solid and liquid ship-generated waste, the volume, treatment and disposal sites for such wastes; and the
violators that PPA has apprehended.
The Department of Health (DOH) is required to submit the names and addresses of septic and sludge
companies that have no treatment facilities. The said agency must also require companies to procure a
"license to operate" issued by the DOH. The Metropolitan Manila Development Authority (MMDA) and the
seventeen (17) LGUs in Metro Manila must submit a report on the "amount of garbage collected per
districtvis--vis the average amount of garbage disposed monthly in landfills and dumpsites." MMDA
must also submit a plan for the removal of informal settlers and encroachments along NCR Rivers which
violate R.A. No. 7279.
Clearly, the Court has no authority to issue these directives. They fall squarely under the domain of the
executive branch of the state. The issuance of specific instructions to subordinate agencies in the
implementation of policy mandates in all laws, not just those that protect the environment, is an exercise
of the power of supervision and control the sole province of the Office of the President.
Both the 1987 Constitution and Executive Order No. 292, or the Administrative Code of the Philippines,
state:
Exercise of Executive Power. - The Executive power shall be vested in the President.3
Power of Control.- The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed.4
In Anak Mindanao Party-list Group v. Executive Secretary,5 this Court has already asserted that the
enforcement of all laws is the sole domain of the Executive. The Court pronounced that the express
constitutional grant of authority to the Executive is broad and encompassing, such that it justifies
reorganization measures6 initiated by the President. The Court said:
While Congress is vested with the power to enact laws, the President executes the laws. The executive
power is vested in the President. It is generally defined as the power to enforce and administer the laws.
It is the power of carrying the laws into practical operation and enforcing their due observance.
As head of the Executive Department, the President is the Chief Executive. He represents the
government as a whole and sees to it that all laws are enforced by the officials and employees of his
department. He has control over the executive department, bureaus and offices. This means that he has
the authority to assume directly the functions of the executive department, bureau and office, or interfere
with the discretion of its officials. Corollary to the power of control, the President also has the duty of
supervising and enforcement of laws for the maintenance of general peace and public order. Thus, he is
granted administrative power over bureaus and offices under his control to enable him to discharge his
duties effectively.
To herein petitioner agencies impleaded below, this Court has given very specific instructions to report
the progress and status of their operations directly to the latter. The Court also required the agencies to
apprise it of any noncompliance with the standards set forth by different laws as to environment
protection. This move is tantamount to making these agencies accountable to the Court instead of the
President. The very occupation streamlined especially for the technical and practical expertise of the
Executive Branch is being usurped without regard for the delineations of power in the Constitution. In fact,
the issuance of the Resolution itself is in direct contravention of the Presidents exclusive power to issue
administrative orders, as shown thus:
Administrative Orders. - Acts of the President which relate to particular aspect of governmental operations
in pursuance of his duties as administrative head shall be promulgated in administrative orders. 7
The Courts discussion in Ople v. Torres8 pertaining to the extent and breadth of administrative power
bestowed upon the President is apt:
Administrative power is concerned with the work of applying policies and enforcing orders as determined
by proper governmental organs. It enables the President to fix a uniform standard of administrative
efficiency and check the official conduct of his agents. To this end, he can issue administrative orders,
rules and regulations.
An administrative order is an ordinance issued by the President which relates to specific aspects in the
administrative operation of government. It must be in harmony with the law and should be for the sole
purpose of implementing the law and carrying out the legislative policy.
The implementation of the policy laid out by the legislature in the Philippine Clean Water Act of 2004,
the Toxic and Hazardous Waste Act or Republic Act 6969, the Environment Code, and other laws geared
towards environment protection is under the competence of the President. Achieved thereby is a
uniform standard of administrative efficiency. And since it is through administrative orders promulgated by
the President that specific operational aspects for these policies are laid out, the Resolution of this Court
overlaps with the Presidents administrative power. No matter how urgent and laudatory the cause of
environment protection has become, it cannot but yield to the higher mandate of separation of powers
and the mechanisms laid out by the people through the Constitution.
One of the directives is that which requires local governments to conduct inspection of homes and
establishments along the riverbanks, and to submit a plan for the removal of certain informal settlers. Not
content with arrogating unto itself the powers of "control" and "supervision" granted by the Administrative
Code to the President over said petitioner administrative agencies, the Court is also violating the latters
general supervisory authority over local governments:
Sec. 18. General Supervision Over Local Governments. - The President shall exercise general
supervision over local governments.9
Sec. 25. National Supervision over Local Government Units.(a) Consistent with the basic policy on
local autonomy, the President shall exercise general supervision over local government units to ensure
that their acts are within the scope of their prescribed powers and functions. 10
The powers expressly vested in any branch of the Government shall not be exercised by, nor delegated
to, any other branch of the Government, except to the extent authorized by the Constitution. 11
As has often been repeated by this Court, the doctrine of separation of powers is the very wellspring from
which the Court draws its legitimacy. Former Chief Justice Reynato S. Puno has traced its origin and
rationale as inhering in the republican system of government:
The principle of separation of powers prevents the concentration of legislative, executive, and judicial
powers to a single branch of government by deftly allocating their exercise to the three branches of
government...
In his famed treatise, The Spirit of the Laws, Montesquieu authoritatively analyzed the nature of
executive, legislative and judicial powers and with a formidable foresight counselled that any combination
of these powers would create a system with an inherent tendency towards tyrannical actions
Again, there is no liberty, if the judiciary power be not separated from the legislative and the executive.
Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control;
for the judge would be then the legislator. Were it joined to the executive power, the judge might behave
with violence and oppression.
There would be an end of everything, were the same man or the same body, whether of the nobles or of
the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions,
and that of trying the causes of individuals. 12
Nor is there merit in the contention that these directives will speed up the rehabilitation of Manila Bay
better than if said rehabilitation were left to the appropriate agencies. Expediency is never a reason to
abandon legitimacy. "The Separation of Powers often impairs efficiency, in terms of dispatch and the
immediate functioning of government. It is the long-term staying power of government that is enhanced by
the mutual accommodation required by the separation of powers."13
Mandamus does not lie to compel a discretionary act.
In G.R. Nos. 171947-48, the Court explicitly admitted that "[w]hile the implementation of the MMDAs
mandated tasks may entail a decision-making process, the enforcement of the law or the very act of
doing what the law exacts to be done is ministerial in nature and may be compelled by mandamus." 14 In
denying the appeal of petitioners and affirming the Decision of the RTC, the Court of Appeals stressed
that the trial courts Decision did not require petitioners to do tasks outside of their usual basic functions
under existing laws.15
In its revised Resolution, the Court is now setting deadlines for the implementation of policy formulations
which require decision-making by the agencies. It has confused an order enjoining a duty, with an order
outliningspecific technical rules on how to perform such a duty. Assuming without conceding that
mandamus were availing under Rule 65, the Court can only require a particular action, but it cannot
provide for the means to accomplish such action. It is at this point where the demarcation of the general
act of "cleaning up the Manila Bay" has become blurred, so much so that the Court now engages in the
slippery slope of overseeing technical details.
In Sps. Abaga v. Sps. Panes16 the Court said:
From the foregoing Rule, there are two situations when a writ of mandamus may issue: (1) when any
tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the
law specifically enjoins as a duty resulting from an office, trust, or station; or (2) when any tribunal,
corporation, board, officer or person unlawfully excludes another from the use and enjoyment of a right or
office to which the other is entitled. The "duty" mentioned in the first situation is a ministerial duty, not a
discretionary duty, requiring the exercise of judgmentIn short, for mandamus to lie, the duty sought to
be compelled to be performed must be a ministerial duty, not a discretionary duty, and the petitioner
must show that he has a well-defined, clear and certain right.
Discretion, on the other hand, is a faculty conferred upon a court or official by which he may decide the
question either way and still be right.17
The duty being enjoined in mandamus must be one according to the terms defined in the law itself. Thus,
the recognized rule is that, in the performance of an official duty or act involving discretion, the
corresponding official can only be directed by mandamus to act, but not to act one way or the other. This
is the end of any participation by the Court, if it is authorized to participate at all.
In setting a deadline for the accomplishment of these directives, not only has the Court provided the
means of accomplishing the task required, it has actually gone beyond the standards set by the law.
There is nothing in the Environment Code, the Administrative Code, or the Constitution which grants this
authority to the judiciary. It is already settled that, "If the law imposes a duty upon a public officer and
gives him the right to decide when and how the duty shall be performed, such duty is not ministerial."18
In Alvarez v. PICOP Resources,19 the Court ruled that,
As an extraordinary writ, the remedy of mandamus lies only to compel an officer to perform
a ministerial duty, not a discretionary one; mandamus will not issue to control the exercise of discretion of
a public officer where the law imposes upon him the duty to exercise his judgment in reference to any
manner in which he is required to act, because it is his judgment that is to be exercised and not that of the
court.
The Constitution does not authorize the courts to "monitor" the execution of their decisions.
It is an oft-repeated rule that the Court has no power to issue advisory opinions, much less "directives"
requiring progress reports from the parties respecting the execution of its decisions. The requirements of
"actual case or controversy" and "justiciability" have long been established in order to limit the exercise of
judicial review. While its dedication to the implementation of the fallo in G.R. 171947-48 is admirable, the
Courts power cannot spill over to actual encroachment upon both the "control" and police powers of the
State under the guise of a "continuing mandamus."
In G.R. 171947-48, the Court said: "Under what other judicial discipline describes as continuing
mandamus, the Court may, under extraordinary circumstances, issue directives with the end in view of
ensuring that its decision would not be set to naught by administrative inaction or indifference."
Needless to say, the "continuing mandamus" in this case runs counter to principles of "actual case or
controversy" and other requisites for judicial review. In fact, the Supreme Court is in danger of acting as a
"super-administrator"20 the scenario presently unfolding in India where the supposed remedy originated.
There the remedy was first used in Vineet Narain and Others v. Union of India, 21 a public interest case for
corruption filed against high-level officials. Since then, the remedy has been applied to environmental
cases as an oversight and control power by which the Supreme Court of India has created committees
(i.e. the Environment Pollution Authority and the Central Empowered Committee in forest cases) and
allowed these committees to act as the policing agencies.22 But the most significant judicial intervention in
this regard was the series of orders promulgated by the Court in T.N. Godavarman v. Union of India. 23
Although the Writ Petition filed by Godavarman was an attempt to seek directions from the Court
regarding curbing the illegal felling of trees, the Supreme Court went further to make policy
determinations in an attempt to improve the countrys forests. The Court Order suspending felling of trees
that did not adhere to state government working plans resulted in effectively freezing the countrys timber
industry. The Supreme Court completely banned tree felling in certain north-eastern states to any part of
the country. The courts role was even more pronounced in its later directions. While maintaining the ban
on felling of trees in the seven northeast states, the court directed the state governments to gather,
process, sell, and otherwise manage the already felled timber in the manner its specified the Supreme
Court became the supervisor of all forest issues, ranging from controlling, pricing and transport of timber
to management of forest revenue, as well as implementation of its orders.24
Thus, while it was originally intended to assert public rights in the face of government inaction and
neglect, the remedy is now facing serious criticism as it has spiraled out of control. 25 In fact, even Justice
J. S. Verma, who penned the majority opinion in Vineet Narain in which continuing mandamus first made
its appearance, subsequently pronounced that "judicial activism should be neither judicial ad hocism nor
judicial tyranny."26Justice B.N. Srikrishna observed that judges now seem to want to engage themselves
with boundless enthusiasm in complex socio-economic issues raising myriads of facts and ideological
issues that cannot be managed by "judicially manageable standards."27 Even Former Chief Justice A. S.
Anand, a known defender of judicial activism, has warned against the tendency towards "judicial
adventurism," reiterating the principle that "the role of the judge is that of a referee. I can blow my judicial
whistle when the ball goes out of play; but when the game restarts I must neither take part in it nor tell the
players how to play."28
Unless our own Supreme Court learns to curb its excesses and apply to this case the standards for
judicial review it has developed over the years and applied to co-equal branches, the scenario in India
could very well play out in the Philippines. The Court must try to maintain a healthy balance between the
departments, precisely as the Constitution mandates, by delineating its "deft strokes and bold
lines,"29 ever so conscious of the requirements of actual case and controversy. While, admittedly, there
are certain flaws in the operation and implementation of the laws, the judiciary cannot take the initiative to
compensate for such perceived inaction.
The Court stated in Tolentino v. Secretary of Finance: 30
Disregard of the essential limits imposed by the case and controversy requirement can in the long run
only result in undermining our authority as a court of law. For, as judges, what we are called upon to
render is judgment according to law, not according to what may appear to be the opinion of the day
Hence, "over nothing but cases and controversies can courts exercise jurisdiction, and it is to make the
exercise of that jurisdiction effective that they are allowed to pass upon constitutional
questions."31 Admirable though the sentiments of the Court may be, it must act within jurisdictional limits.
These limits are founded upon the traditional requirement of a cause of action: "the act or omission by
which a party violates a right of another."32 In constitutional cases, for every writ or remedy, there must be
a clear pronouncement of the corresponding right which has been infringed. Only then can there surface
that "clear concreteness provided when a question emerges precisely framed and necessary for decision
from a clash of adversary argument exploring every aspect of a multifaceted situation embracing
conflicting and demanding interests."33
Unfortunately, the Court fails to distinguish between a pronouncement on violation of rights on one hand,
and non-performance of duties vis--vis operational instructions, on the other. Moreover, it also dabbles
in an interpretation of constitutional rights in a manner that is dangerously pre-emptive of legally available
remedies.
The "continuing mandamus" palpably overlaps with the power of congressional oversight.
Article 6, Section 22 of the 1987 Constitution states:
The heads of department may upon their own initiative, with the consent of the President, or upon the
request of either House, or as the rules of each House shall provide, appear before and be heard by such
House on any matter pertaining to their departments. Written questions shall be submitted to the
President of the Senate or the Speaker of the House of Representatives at least three days before their
scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters
related thereto. When the security of the state or the public interest so requires and the President so
states in writing, the appearance shall be conducted in executive session.
This provision pertains to the power to conduct a question hour, the objective of which is to obtain
information in pursuit of Congress oversight function. Macalintal v. Comelec34 discussed the scope of
congressional oversight in full. Oversight refers to the power of the legislative department to check,
monitor and ensure that the laws it has enacted are enforced:
The power of Congress does not end with the finished task of legislation. Concomitant with its
principal power to legislate is the auxiliary power to ensure that the laws it enacts are faithfully
executed. As well stressed by one scholar, the legislature "fixes the main lines of substantive policy and
is entitled to see that administrative policy is in harmony with it; it establishes the volume and purpose of
public expenditures and ensures their legality and propriety; it must be satisfied that internal
administrative controls are operating to secure economy and efficiency; and it informs itself of the
conditions of administration of remedial measure.
Clearly, oversight concerns post-enactment measures undertaken by Congress: (a) to monitor

bureaucratic compliance with program objectives, (b) to determine whether agencies are properly
administered, (c) to eliminate executive waste and dishonesty, (d) to prevent executive usurpation of
legislative authority, and (d) to assess executive conformity with the congressional perception of public
interest.
Congress, thus, uses its oversight power to make sure that the administrative agencies perform
their functions within the authority delegated to them.
Macalintal v. Comelec further discusses that legislative supervision under the oversight power connotes a
continuing and informed awareness on the part of Congress regarding executive operations in a given
administrative area. Because the power to legislate includes the power to ensure that the laws are
enforced, this monitoring power has been granted by the Constitution to the legislature. In cases of
executive non-implementation of statutes, the courts cannot justify the use of "continuing mandamus," as
it would by its very definition overlap with the monitoring power under congressional oversight. The
Resolution does not only encroach upon the general supervisory function of the Executive, it also
diminished and arrogated unto itself the power of congressional oversight.
Conclusion
This Court cannot nobly defend the environmental rights of generations of Filipinos enshrined in the
Constitution while in the same breath eroding the foundations of that very instrument from which it draws
its power. While the remedy of "continuing mandamus" has evolved out of a Third World jurisdiction
similar to ours, we cannot overstep the boundaries laid down by the rule of law. Otherwise, this Court
would rush recklessly beyond the delimitations precisely put in place to safeguard excesses of power.
The tribunal, considered by many citizens as the last guardian of fundamental rights, would then
resemble nothing more than an idol with feet of clay: strong in appearance, but weak in foundation.
The Court becomes a conscience by acting to remind us of limitation on power, even judicial power,
and the interrelation of good purposes with good means. Morality is not an end dissociated from means.
There is a morality of morality, which respects the limitation of office and the fallibility of the human
mindself-limitation is the first mark of the master. That, too is part of the role of the conscience. 35
The majority Resolution would, at the same time, cast the light of scrutiny more harshly on judicial action
in which the Courts timely exercise of its powers is called for as in the cases of prisoners languishing in
jail whose cases await speedy resolution by this Court. There would then be nothing to stop the executive
and the legislative departments from considering as fair game the judiciarys own accountability in its
clearly delineated department.

Associate Justice
Footnotes
1 Justice Dr. A.S. Anand, Supreme Court of India,"Judicial Review Judicial Activism Need for
Caution," in Soli Sorabjees Law and Justice: An Anthology, Universal Law Publishing Company,
(2003), at 377. Also in Justice A.S. Anand, Millenium Law Lecture Series, Thursday, October 21,
1999, Kochi, Kerala, available at http://airwebworld.com/articles/index.php. (visited 17 November
2010)
2 "In particular: (1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the primary agency
responsible for the conservation, management, development, and proper use of the countrys
environment and natural resources, and Sec. 19 of RA 9275, designating the DENR as the
primary government agency responsible for its enforcement and implementation, the DENR is
directed to fully implement its Operational Plan for the Manila Bay Coastal Strategy for the
rehabilitation, restoration, and conservation of the Manila Bay at the earliest possible time. It is
ordered to call regular coordination meetings with concerned government departments and
agencies to ensure the successful implementation of the aforesaid plan of action in accordance
with its indicated completion schedules.
(2) Pursuant to Title XII (Local Government) of the Administrative Code of 1987 and Sec.
25 of the Local Government Code of 1991, the DILG, in exercising the Presidents power
of general supervision and its duty to promulgate guidelines in establishing waste
management programs under Sec. 43 of the Philippine Environment Code (PD 1152),
shall direct all LGUs in Metro Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga, and
Bataan to inspect all factories, commercial establishments, and private homes along the
banks of the major river systems in their respective areas of jurisdiction, such as but not
limited to the Pasig-Marikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las Pias)
Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-
Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the
Laguna De Bay, and other minor rivers and waterways that eventually discharge water
into the Manila Bay; and the lands abutting the bay, to determine whether they have
wastewater treatment facilities or hygienic septic tanks as prescribed by existing laws,
ordinances, and rules and regulations. If none be found, these LGUs shall be ordered to
require non-complying establishments and homes to set up said facilities or septic tanks
within a reasonable time to prevent industrial wastes, sewage water, and human wastes
from flowing into these rivers, waterways, esteros, and the Manila Bay, under pain of
closure or imposition of fines and other sanctions.
(3) As mandated by Sec. 8 of RA 9275, the MWSS is directed to provide, install, operate,
and maintain the necessary adequate waste water treatment facilities in Metro Manila,
Rizal, and Cavite where needed at the earliest possible time.
(4) Pursuant to RA 9275, the LWUA, through the local water districts and in coordination
with the DENR, is ordered to provide, install, operate, and maintain sewerage and
sanitation facilities and the efficient and safe collection, treatment, and disposal of
sewage in the provinces of Laguna, Cavite, Bulacan, Pampanga, and Bataan where
needed at the earliest possible time.
(5) Pursuant to Sec. 65 of RA 8550, the DA, through the BFAR, is ordered to improve
and restore the marine life of the Manila Bay. It is also directed to assist the LGUs in
Metro Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga, and Bataan in developing,
using recognized methods, the fisheries and aquatic resources in the Manila Bay.
(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP Maritime Group, in
accordance with Sec. 124 of RA 8550, in coordination with each other, shall apprehend
violators of PD 979, RA 8550, and other existing laws and regulations designed to
prevent marine pollution in the Manila Bay.
(7) Pursuant to Secs. 2 and 6-c of EO 513 and the International Convention for the
Prevention of Pollution from Ships, the PPA is ordered to immediately adopt such
measures to prevent the discharge and dumping of solid and liquid wastes and other
ship-generated wastes into the Manila Bay waters from vessels docked at ports and
apprehend the violators.
(8) The MMDA, as the lead agency and implementor of programs and projects for flood
control projects and drainage services in Metro Manila, in coordination with the DPWH,
DILG, affected LGUs, PNP Maritime Group, Housing and Urban Development
Coordinating Council (HUDCC), and other agencies, shall dismantle and remove all
structures, constructions, and other encroachments established or built in violation of RA
7279, and other applicable laws along the Pasig-Marikina-San Juan Rivers, the NCR
(Paraaque-Zapote, Las Pias) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers,
and connecting waterways and esteros in Metro Manila. The DPWH, as the principal
implementor of programs and projects for flood control services in the rest of the country
more particularly in Bulacan, Bataan, Pampanga, Cavite, and Laguna, in coordination
with the DILG, affected LGUs, PNP Maritime Group, HUDCC, and other concerned
government agencies, shall remove and demolish all structures, constructions, and other
encroachments built in breach of RA 7279 and other applicable laws along the
Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus
(Cavite) River, the Laguna De Bay, and other rivers, connecting waterways,
and esteros that discharge wastewater into the Manila Bay.
In addition, the MMDA is ordered to establish, operate, and maintain a sanitary landfill, as
prescribed by RA 9003, within a period of one (1) year from finality of this Decision. On
matters within its territorial jurisdiction and in connection with the discharge of its duties
on the maintenance of sanitary landfills and like undertakings, it is also ordered to cause
the apprehension and filing of the appropriate criminal cases against violators of the
respective penal provisions of RA 9003, Sec. 27 of RA 9275 (the Clean Water Act), and
other existing laws on pollution.
(9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8 of RA 9275, within one
(1) year from finality of this Decision, determine if all licensed septic and sludge
companies have the proper facilities for the treatment and disposal of fecal sludge and
sewage coming from septic tanks. The DOH shall give the companies, if found to be non-
complying, a reasonable time within which to set up the necessary facilities under pain of
cancellation of its environmental sanitation clearance.
(10) Pursuant to Sec. 53 of PD 1152, Sec. 118 of RA 8550, and Sec. 56 of RA 9003, the
DepEd shall integrate lessons on pollution prevention, waste management,
environmental protection, and like subjects in the school curricula of all levels to inculcate
in the minds and hearts of students and, through them, their parents and friends, the
importance of their duty toward achieving and maintaining a balanced and healthful
ecosystem in the Manila Bay and the entire Philippine archipelago.
(11) The DBM shall consider incorporating an adequate budget in the General
Appropriations Act of 2010 and succeeding years to cover the expenses relating to the
cleanup, restoration, and preservation of the water quality of the Manila Bay, in line with
the countrys development objective to attain economic growth in a manner consistent
with the protection, preservation, and revival of our marine waters.
(12) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH, DBM,
PCG, PNP Maritime Group, DILG, and also of MWSS, LWUA, and PPA, in line with the
principle of "continuing mandamus," shall, from finality of this Decision, each submit to
the Court a quarterly progressive report of the activities undertaken in accordance with
this Decision.
No costs.
SO ORDERED."
3 E.O. 292, Book II, Chapter 3, Sec. 11; and 1987 Constitution, Art. 7, Sec. 1.
4 E.O. 292, Book III, Chapter 1, Sec. 1; and 1987 Constitution, Art. 7, Sec. 17.
5 G.R. No. 166052, 29 August 2007, 531 SCRA 583.
6 E.O. 379 and 364 were promulgated, placing the Presidential Commission for the Urban Poor
(PCUP) under the supervision and control of the DAR, and the National Commission on
Indigenous Peoples (NCIP) as an attached agency under the Department of Agrarian Reform.
7 E.O. 292, Book 3, Title 1, Chapter 2, Sec 3.
8 G.R. No. 127685, 23 July 1998, 293 SCRA 141.
9 1987 Constitution, Art. 2 on State Policies.
10 E.O. 292, Book 3, Title 1, Chapter 6, Sec. 25.
11 E.O 292, Book 2, Chapter 1, Sec 1(8).
12C.J. Reynato S. Puno, Separate Concurring Opinion, Macalintal v. Comelec, G.R. No .157013,
10 July 2003, 405 SCRA 614.
13United States v. American Tel. &Tel Co., 567 F 2d 121 (1977), citing J. Brandeis, Separate
Dissenting Opinion, Myers v. United States, US 52 293, 47 (1926).
14P. 12, MMDA v. Concerned Residents of Manila Bay, G.R. Nos. 171947-48, 15 December
2008, 574 SCRA 661.
15 Id. at 9.
16 G.R. No. 147044, 24 August 2007, 531 SCRA 56, 62- 63.
17 Asuncion v. De Yriarte, 28 Phil 67.
18 Meralco Securities v. Savellano, L-36748, 23 October 1982, 117 SCRA 804.
19 G.R. No. 162243, 29 November 2006, 508 SCRA 498.
20 A term used by Manu Nair, correspondent of The International Environment News, describing
the Supreme Court of India in the Forest Conservation Case. Available
athttp://www.abanet.org/intlaw/committees/business_regulation/environment/nairreportjune05.pdf
. (visited 17 November 2010)
21 1996 SC (2) 199 JT 1996 (1) 708 1996 SCALE (1) SP 31.
22Rajeev Davan, Supreme Court advocate, Supreme Court of India, Judicial Excessivism,
available at http://www.indiaenvironmentportal.org.in/content/judicialexcessivism. (visited 17
November 2010)
23 T.N. Godavarman Thirumulkpad v. Union of India & Ors (1997) 2 SCC 267.
24 Supra note 20 at page 2.
25Abhaykumar Dilip Ostwal, Supreme Court advocate, Supreme Court of India, Judicial Activism
and Self-Restraint, available at http://airwebworld.com/articles/index.php. (visited 17 November
2010)
26Justice J.S. Verma, "Judicial activism should be neither judicial ad hocism nor judicial tyranny",
as published in The Indian Express, 06th April 2007 (http://www.indianexpress.com).
27 Justice B.N. Srikrishna, "Skinning a Cat" (2005) 8 SCC (J) 3.
28 Supra note 1.
29 A phrase used by Justice Laurel in Angara v. Electoral Commission, 63 Phil. 130 (1936).
30G.R. No. 115525, 25 August 1994, 435 SCRA 630, holding that judicial inquiry whether the
formal requirements for the enactment of statutes beyond those prescribed by the Constitution
have been observed, is precluded by the principle of separation of powers.
31 Vicente V. Mendoza, "The Nature and Function of Judicial Review," 31 IBP Journal 1 (2005).
32 Rules of Court, Rule 2, Sec. 2.
33 United States v. Fruehauf, 365 U.S. 146, 157 (1968).
34 Macalintal v. Comelec, G.R. No .157013, 10 July 2003, 405 SCRA 614.
35 Paul Freund, quoting Justice Brandeis, in Law and Justice 36 (1968).

Case Digest: MMDA v. Concerned Residents of Manila Bay
G.R. No. 171947 : February 15, 2011
METROPOLITAN MANILA DEVELOPMENT AUTHORITY, DEPARTMENT OF ENVIRONMENT

AND NATURAL RESOURCES, DEPARTMENT OF EDUCATION, CULTURE AND SPORTS,
DEPARTMENT OF HEALTH, DEPARTMENT OF AGRICULTURE, DEPARTMENT OF
PUBLIC WORKS AND HIGHWAYS, DEPARTMENT OF BUDGET AND MANAGEMENT,
PHILIPPINE COAST GUARD, PHILIPPINE NATIONAL POLICE MARITIME GROUP, and
DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, Petitioners,
v.
CONCERNED RESIDENTS OF MANILA BAY, represented and joined by DIVINA V. ILAS, SABINIANO
ALBARRACIN, MANUEL SANTOS, JR., DINAH DELA PEA, PAUL DENNIS QUINTERO, MA.
VICTORIA LLENOS, DONNA CALOZA, FATIMA QUITAIN, VENICE SEGARRA, FRITZIE TANGKIA,
SARAH JOELLE LINTAG, HANNIBAL AUGUSTUS BOBIS, FELIMON SANTIAGUEL, and JAIME
AGUSTIN R. OPOSA, Respondents.
FACTS:
The Supreme Court rendered a Decision in G.R. Nos. 171947-48 ordering petitioners to clean up, rehabilitate and
preserve Manila Bay in their different capacities.
The Manila Bay Advisory Committee was created to receive and evaluate the quarterly progressive reports on the
activities undertaken by the agencies in accordance with said decision and to monitor the execution phase.
In the absence of specific completion periods, the Committee recommended that time frames be set for the agencies
to perform their assigned tasks.
ISSUE: Whether or not the recommendation by the Committee is an encroachment over the powers and
functions of the Executive Branch headed by the President of the Philippines.
HELD: The petition lacks merit.
CONSTITUTIONAL LAW: Adjudicative function
The issuance of subsequent resolutions by the Court is simply an exercise of judicial power under Art. VIII of the
Constitution, because the execution of the Decision is but an integral part of the adjudicative function of the Court.
While additional activities are required of the agencies like submission of plans of action, data or status reports,
these directives are but part and parcel of the execution stage of a final decision under Rule 39 of the Rules of Court.
Petition is DENIED.
G.R. No. 209271, December 08, 2015
INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-BIOTECH

APPLICATIONS, INC., Petitioner, v. GREENPEACE SOUTHEAST ASIA (PHILIPPINES),
MAGSASAKA AT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG),
REP. TEODORO CASIO, DR. BEN MALAYANG III, DR. ANGELINA GALANG,
LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO
MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR.,
ATTY. H. HARRY ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON,
MAYOR EDWARD S. HAGEDORN AND EDWIN MARTHINE LOPEZ, Respondents.
CROP LIFE PHILIPPINES, INC., Petitioner-in-Intervention.
G.R. No. 209276
ENVIRONMENTAL MANAGEMENT BUREAU OF THE DEPARTMENT OF ENVIRONMENT

AND NATURAL RESOURCES, BUREAU OF PLANT INDUSTRY AND FERTILIZER AND
PESTICIDE AUTHORITY OF THE DEPARTMENT OF
AGRICULTURE, Petitioners, v. COURT OF APPEALS, GREENPEACE SOUTHEAST ASIA
(PHILIPPINES), MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD NG
AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III, DR.
ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA
PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR.
WENCESLAO KIAT, JR., ATTY. H. HARRY ROQUE, JR., FORMER SEN. ORLANDO
MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN AND EDWIN
MARTHINE LOPEZ, RESPONDENTS. CROP LIFE PHILIPPINES, INC. Petitioner-in-
Intervention.
G.R. No. 209301
UNIVERSITY OF THE PHILIPPINES LOS BANOS FOUNDATION,

INC., Petitioner, v. GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKAAT
SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO
CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III,
CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY
MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. HARRY R.
ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR
EDWARD S. HAGEDORN AND EDWIN MARTHINE LOPEZ, Respondents.
G.R. No. 209430
UNIVERSITY OF THE PHILIPPINES, Petitioner, v. GREENPEACE SOUTHEAST ASIA

(PHILIPPINES), MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD NG
AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III, DR.
ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA
PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR.
WENCESLAO KIAT, ATTY. HARRY R. ROQUE, JR., FORMER SEN. ORLANDO
MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN AND EDWIN
MARTHINE LOPEZ, Respondents.
DECISION
VILLARAMA, JR., J.:
The consolidated petitions before Us seek the reversal of the Decision1 dated May 17, 2013
and Resolution2 dated September 20, 2013 of the Court of Appeals (CA) in CA-G.R. SP No.
00013 which permanently enjoined the conduct of field trials for genetically modified
eggplant.
The Parties
Respondent Greenpeace Southeast Asia (Philippines) is the Philippine branch of Greenpeace

Southeast Asia, a regional office of Greenpeace International registered in
Thailand.3 Greenpeace is a non-governmental environmental organization which operates in
over 40 countries and with an international coordinating body in Amsterdam, Netherlands.
It is well known for independent direct actions in the global campaign to preserve the
environment and promote peace.
Petitioner International Service for the Acquisition of Agri-Biotech Applications, Inc. (ISAAA)
is an international non-profit organization founded in 1990 "to facilitate the acquisition and
transfer of agricultural biotechnology applications from the industrial countries, for the
benefit of resource-poor farmers in the developing world" and ultimately "to alleviate
hunger and poverty in the developing countries." Partly funded by the United States Agency
for International Development (USAID), ISAAA promotes the use of agricultural
biotechnology, such as genetically modified organisms (GMOs).4
Respondent Magsasaka at Siyentipiko sa Pagpapaunlad ng Agrikultura (MASIPAG) is a

coalition of local farmers, scientists and NGOs working towards "the sustainable use and
management of biodiversity through farmers' control of genetic and biological resources,
agricultural production, and associated knowledge."
The University of the Philippines Los Bafios (UPLB) is an autonomous constituent of the
University of the Philippines (UP), originally established as the UP College of Agriculture. It
is the center of biotechnology education and research in Southeast Asia and home to at
least four international research and extension centers. Petitioner UPLB Foundation, Inc.
(UPLBFI) is a private corporation organized "to be an instrument for institutionalizing a
rational system of utilizing UPLB expertise and other assets for generating additional
revenues and other resources needed by [UPLB]". Its main purpose is to assist UPLB in
"expanding and optimally utilizing its human, financial, and material resources towards a
focused thrust in agriculture, biotechnology, engineering and environmental sciences and
related academic programs and activities." A memorandum of agreement between UPLBFI
and UPLB allows the former to use available facilities for its activities and the latter to
designate from among its staff such personnel needed by projects.5
Petitioner University of the Philippines (UP) is an institution of higher learning founded in

1908. Under its new charter, Republic Act 9500,6 approved on April 29, 2008 by President
Gloria Macapagal-Arroyo, UP was declared as the national university tasked "to perform its
unique and distinctive leadership in higher education and development." Among others, UP
was mandated to "serve as a research university in various fields of expertise and
specialization by conducting basic and applied research and development, and promoting
research in various colleges and universities, and contributing to the dissemination and
application of knowledge."7
The other individual respondents are Filipino scientists, professors, public officials and
ordinary citizens invoking their constitutionally guaranteed right to health and balanced
ecology, and suing on their behalf and on behalf of future generations of Filipinos.
Factual Background
Biotechnology is a multi-disciplinary field which may be defined as "any technique that uses
living organisms or substances from those organisms to make or modify a product, to
improve plants or animals, or to develop microorganisms for specific uses."8 Its many
applications include agricultural production, livestock, industrial chemicals and
pharmaceuticals.
In 1979, President Ferdinand Marcos approved and provided funding for the establishment
of the National Institute for Applied Microbiology and Biotechnology (BIOTECH) at UPLB. It
is the premier national research and development (R & D) institution applying traditional
and modern biotechnologies in innovating products, processes, testing and analytical
services for agriculture, health, energy, industry and development.9
In 1990, President Corazon C. Aquino signed Executive Order (EO) No. 430 creating the
National Committee on Biosafety of the Philippines (NCBP). NCBP was tasked, among
others, to "identify and evaluate potential hazards involved in initiating genetic engineering
experiments or the introduction of new species and genetically engineered organisms and
recommend measures to minimize risks" and to "formulate and review national policies and
guidelines on biosafety, such as the safe conduct of work on genetic engineering, pests and
their genetic materials for the protection of public health, environment and personnel and
supervise the implementation thereof."
In 1991, NCBP formulated the Philippine Biosafety Guidelines, which governs the regulation
of the importation or introduction, movement and field release of potentially hazardous
biological materials in the Philippines. The guidelines also describe the required physical and
biological containment and safety procedures in handling biological materials. This was
followed in 1998 by the "Guidelines on Planned Release of Genetically Manipulated
Organisms (GMOs) and Potentially Harmful Exotic Species (PHES)."10
On December 29, 1993, the Convention on Biological Diversity (CBD) came into force. This
multilateral treaty recognized that "modern biotechnology has great potential for human
well-being if developed and used with adequate safety measures for the environment and
human health." Its main objectives, as spelled out in Article 1, are the "conservation of
biological diversity, the sustainable use of its components and the fair and equitable sharing
of the benefits arising out of the utilization of genetic resources."
In January 2000, an agreement was reached on the Cartagena Protocol on Biosafety

(Cartagena Protocol), a supplemental to the CBD. The Cartagena Protocol aims "to
contribute to ensuring an adequate level of the safe transfer, handling and use of living
modified organisms resulting from modern biotechnology that may have adverse effects on
the conservation and sustainable use of biological diversity, taking into account risks to
human health, and specifically focusing on transboundary movements."
On May 24, 2000, the Philippines signed the Cartagena Protocol, which came into force on
September 11, 2003. On August 14, 2006, the Philippine Senate adopted Senate Resolution
No. 92 or the "Resolution Concurring in the Ratification of the Cartagena Protocol on
Biosafety (CPB) to the UN Convention on Biological Diversity."
On July 16, 2001, President Gloria Macapagal-Arroyo issued a policy statement reiterating
the government policy of promoting the safe and responsible use of modern biotechnology
and its products as one of several means to achieve and sustain food security, equitable
access to health services, sustainable and safe environment and industry development. 11
In April 2002, the Department of Agriculture (DA) issued DA-Administrative Order (AO) No.
08 providing rules and regulations for the importation and release into the environment of
plants and plant products derived from the use of modem biotechnology.
DAO-08-2002 covers the importation or release into the environment of: (1) any plant
which has been altered or produced through the use of modem biotechnology if the donor
organism, host organism, or vector or vector agent belongs to the genera or taxa classified
by the Bureau of Plant Industry (BPI) as meeting the definition of plant pest or is a medium
for the introduction of noxious weeds; or (2) any plant or plant product altered through the
use of modem biotechnology which may pose significant risks to human health and the
environment based on available scientific and technical information.
The country's biosafety regulatory system was further strengthened with the issuance of EO
No. 514 (EO 514) on March 17, 2006, "Establishing the National Biosafety Framework
(NBF), Prescribing Guidelines for its Implementation, and Strengthening the NCBP." The
NBF shall apply to the development, adoption and implementation of all biosafety policies,
measures and guidelines and in making decisions concerning the research, development,
handling and use, transboundary movement, release into the environment and management
of regulated articles.12
EO 514 expressly provides that, unless amended by the issuing departments or agencies,
DAO 08-2002, the NCBP Guidelines on the Contained Use of Genetically Modified
Organisms, except for provisions on potentially harmful exotic species which were repealed,
and all issuances of the Bureau of Food and Drugs Authority (FDA) on products of modem
biotechnology, shall continue to be in force and effect. 13
On September 24, 2010, a Memorandum of Undertaking14 (MOU) was executed between

UPLBFI, ISAAA and UP Mindanao Foundation, Inc.
(UPMFI), in pursuance of a collaborative research and development project on eggplants

that are resistant to the fruit and shoot borer. Other partner agencies involved in the project
were UPLB through its Institute of Plant Breeding, Maharastra Hybrid Seed Company
(MAHYCO) of India, Cornell University and the Agricultural Biotechnology Support Project II
(ABSPII) of US AID.
As indicated in the Field Trial Proposal 15 submitted by the implementing institution (UPLB),
the pest-resistant crop subject of the field trial was described as a "bioengineered
eggplant." The crystal toxin genes from the soil bacterium Bacillus thuringiensis (Bt) were
incorporated into the eggplant (talong) genome to produce the protein CrylAc which is toxic
to the target insect pests. CrylAc protein is said to be highly specific to lepidopteran
larvae such as the fruit and shoot borer (FSB), the most destructive insect pest of eggplant.
Under the regulatory supervision of NCBP, a contained experiment was started in 2007 and
officially completed on March 3, 2009. The NCBP thus issued a Certificate of Completion of
Contained Experiment stating that "During the conduct of the experiment, all the biosafety
measures have been complied with and no untoward incident has occurred." 16
BPI issued Biosafety Permits17 to UPLB on March 16, 2010 and June 28, 2010. Thereafter,
field testing of Bt talong commenced on various dates in the following approved trial sites:
Kabacan, North Cotabato; Sta. Maria, Pangasinan; Pili, Camarines Sur; Bago Oshiro, Davao
City; and Bay, Laguna.
On April 26, 2012, Greenpeace, MASIPAG and individual respondents (Greenpeace, et al.)
filed a petition for writ of kalikasan and writ of continuing mandamus with prayer for the
issuance of a Temporary Environmental Protection Order (TEPO). They alleged that the Bt
talong field trials violate their constitutional right to health and a balanced ecology
considering that (1) the required environmental compliance certificate under Presidential
Decree (PD) No. 1151 was not secured prior to the project implementation; (2) as a
regulated article under DAO 08-2002, Bt talong is presumed harmful to human health and
the environment, and there is no independent, peer-reviewed study on the safety of Bt
talong for human consumption and the environment; (3) a study conducted by Professor
Gilles-Eric Seralini showed adverse effects on rats who were fed Bt corn, while local
scientists also attested to the harmful effects of GMOs to human and animal health;
(4) Bt crops can be directly toxic to non-target species as highlighted by a research
conducted in the US which demonstrated that pollen from Bt maize was toxic to the
Monarch butterfly; (5) data from the use of Bt CrylAb maize indicate that beneficial insects
have increased mortality when fed on larvae of a maize pest, the corn borer, which had
been fed on Bt, and hence non-target beneficial species that may feed on eggplant could be
similarly affected; (6) data from China show that the use of Bt crops (Bt cotton) can
exacerbate populations of other secondary pests; (7) the built-in pesticides of Bt crops will
lead to Bt resistant pests, thus increasing the use of pesticides contrary to the claims by
GMO manufacturers; and (8) the 200 meters perimeter pollen trap area in the field testing
area set by BPI is not sufficient to stop contamination of nearby non-Bt eggplants because
pollinators such as honeybees can fly as far as four kilometers and an eggplant is 48%
insect-pollinated. The full acceptance by the project proponents of the findings in the
MAHYCO Dossier was strongly assailed on the ground that these do not precisely and
adequately assess the numerous hazards posed by Bt talong and its field trial.
Greenpeace, et al. further claimed that the Bt talong field test project did not comply with
the required public consultation under Sections 26 & 27 of theLocal Government Code, A
random survey by Greenpeace on July 21, 2011 revealed that ten households living in the
area immediately around the Bt talong experimental farm in Bay, Laguna expressed lack of
knowledge about the field testing in their locality. The Sangguniang Barangay of
Pangasugan in Baybay, Leyte complained about the lack of information on the nature and
uncertainties of the Bt talong field testing in their barangay. The Davao City Government
likewise opposed the project due to lack of transparency and public consultation. It ordered
the uprooting of Bt eggplants at the trial site and disposed them strictly in accordance with
protocols relayed by the BPI through Ms. Merle Palacpac. Such action highlighted the city
government's policy on "sustainable and safe practices." On the other hand,
the Sangguniang Bayan of Sta. Barbara, Iloilo passed a resolution suspending the field
testing due to the following: 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 genetically modified (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 products were
sold to the market.
Greenpeace, et al. argued that this case calls for the application of the precautionary
principle, the Bt talong field testing being a classic environmental case where scientific
evidence as to the health, environmental and socio-economic safety is insufficient or
uncertain and preliminary scientific evaluation indicates reasonable grounds for concern that
there are potentially dangerous effects on human health and the environment.
The following reliefs are thus prayed for:
a. Upon the filing [of this petition], a Temporary Environment Protection Order should be
issued: (i) enjoining public respondents BPI and FPA of the DA from processing for field
testing, and registering as herbicidal product, Bt talong in the Philippines; (ii) stopping all
pending field testing of Bt talong anywhere in the Philippines; and (in) ordering the
uprooting of planted Bt talong for field trials as their very presence pose significant and
irreparable risks to human health and the environment.
b. Upon the filing [of this petition], issue a writ of continuing mandamus commanding:
(i) Respondents to submit to and undergo the process of environmental impact statement
system under the Environmental Management Bureau;
(ii) Respondents to submit independent, comprehensive, and rigid risk assessment, field
tests report, regulatory compliance reports and supporting documents, and other material
particulars of the Bt talong field trial;
(iii) Respondents to submit all its issued certifications on public information, public
consultation, public participation, and consent of the local government units in the
barangays, municipalities, and provinces affected by the field testing of Bt talong;
(iv) Respondent regulator, in coordination with relevant government agencies and in

consultation with stakeholders, to submit an acceptable draft of an amendment of the
National Bio-Safety Framework of the Philippines, and DA Administrative Order No. 08,
defining or incorporating an independent, transparent, and comprehensive scientific and
socio-economic risk assessment, public information, consultation, and participation, and
providing for their effective implementation, in accord with international safety standards;
and,
(v) Respondent BPI of the DA, in coordination with relevant government agencies, to
conduct balanced nationwide public information on the nature of Bt talong and Bt
talong field trial, and a survey of social acceptability of the same.
c. Upon filing [of this petition], issue a writ of kalikasan commanding Respondents to file
their respective returns and explain why they should not be judicially sanctioned for
violating or threatening to violate or allowing the violation of the above-enumerated laws,
principles, and international principle and standards, or committing acts, which would result
into an environmental damage of such magnitude as to prejudice the life, health, or
property of petitioners in particular and of the Filipino people in general.
d. After hearing and judicial determination, to cancel all Bt talong field experiments that are
found to be violating the abovementioned laws, principles, and international standards; and
recommend to Congress curative legislations to effectuate such
order.18ChanRoblesVirtualawlibrary
On May 2, 2012, the Court issued the writ of kalikasan against ISAAA, Environmental
Management Bureau (EMB)/BPI/Fertilizer and Pesticide Authority (FPA) and UPLB,18-
a
ordering them to make a verified return within a non-extendible period often (10) days, as
provided in Sec. 8, Rule 7 of the Rules of Procedure for Environmental Cases.19
ISAAA, EMB/BPI/FPA, UPLBFI and UPMFI filed their respective verified returns. They all
argued that the issuance of writ of kalikasan is not proper because in the implementation of
the Bt talong project, all environmental laws were complied with, including public
consultations in the affected communities, to ensure that the people's right to a balanced
and healthful ecology was protected and respected. They also asserted that the Bt
talongproject is not covered by the Philippine Environmental Impact Statement (PEIS) Law
and that Bt talong field trials will not significantly affect the quality of the environment nor
pose a hazard to human health. ISAAA contended that the NBF amply safeguards the
environment policies and goals promoted by the PEIS Law. On its part, UPLBFI asserted that
there is a "plethora of scientific works and literature, peer-reviewed, on the safety of Bt
talong for human consumption."20 UPLB, which filed an Answer21 to the petition before the
CA, adopted said position of UPLBFI.
ISAAA argued that the allegations regarding the safety of Bt talong as food are irrelevant in
the field trial stage as none of the eggplants will be consumed by humans or animals, and
all materials that will not be used for analyses will be chopped, boiled and buried following
the Biosafety Permit requirements. It cited a 50-year history of safe use and consumption of
agricultural products sprayed with commercial Bt microbial pesticides and a 14-year history
of safe consumption of food and feed derived from Bt crops. Also mentioned is the almost 2
million hectares of land in the Philippines which have been planted with Bt corn since 2003,
and the absence of documented significant and negative impact to the environment and
human health. The statements given by scientists and experts in support of the allegations
of Greenpeace, et al. on the safety of Bt corn was also addressed by citing the contrary
findings in other studies which have been peer-reviewed and published in scientific journals.
On the procedural aspect, ISAAA sought the dismissal of the petition for writ of kalikasan for
non-observance of the rule on hierarchy of courts and the allegations therein being mere
assertions and baseless conclusions of law. EMB, BPI and FPA questioned the legal standing
of Greenpeace, et al. in filing the petition for writ of kalikasan as they do not stand to suffer
any direct injury as a result of the Bt talong field tests. They likewise prayed for the denial
of the petition for continuing mandamus for failure to state a cause of action and for utter
lack of merit.
UPMFI also questioned the legal standing of Greenpeace, et al. for failing to allege that they
have been prejudiced or damaged, or their constitutional rights to health and a balanced
ecology were violated or threatened to be violated by the conduct of Bt talong field trials.
Insofar as the field trials in Davao City, the actual field trials at Bago Oshiro started on
November 25, 2010 but the plants were uprooted by Davao City officials on December 17-
18, 2010. There were no further field trials conducted and hence no violation of
constitutional rights of persons or damage to the environment, with respect to Davao City,
occurred which will justify the issuance of a writ of kalikasan. UPMFI emphasized that under
the MOU, its responsibility was only to handle the funds for the project in their trial site. It
pointed out that in the Field Trial Proposal, Public Information Sheet, Biosafety Permit for
Field Testing, and Terminal Report (Davao City Government) by respondent Leonardo R.
Avila III, nowhere does UPMFI appear either as project proponent, partner or implementing
arm. Since UPMFI, which is separate and distinct from UP, undertook only the fund
management of Bt talong field test project the duration of which expired on July 1, 2011, it
had nothing to do with any field trials conducted in other parts of the country.
Finally, it is argued that the precautionary principle is not applicable considering that the
field testing is only a part of a continuing study being done to ensure that the field trials
have no significant and negative impact on the environment. There is thus no resulting
environmental damage of such magnitude as to prejudice the life, health, property of
inhabitants in two or more cities or provinces. Moreover, the issues raised by Greenpeace,
et al. largely involve technical matters which pertain to the special competence of BPI
whose determination thereon is entitled to great respect and even finality.
By Resolution dated July 10, 2012, the Court referred this case to the CA for acceptance of
the return of the writ and for hearing, reception of evidence and rendition of judgment. 22
CA Proceedings and Judgment
At the preliminary conference held on September 12, 2012, the parties submitted the
following procedural issues: (1) whether or not Greenpeace, et al. have legal standing to file
the petition for writ of kalikasan; (2) whether or not said petition had been rendered moot
and academic by the alleged termination of the Bt talong field testing; and (3) whether or
not the case presented a justiciable controversy.
Under Resolution23 dated October 12, 2012, the CA resolved that: (1) Greenpeace, et al.
possess the requisite legal standing to file the petition for writ ofkalikasan; (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.
The CA then proceeded to hear the merits of the case, adopting the "hot-tub" method
wherein the expert witnesses of both parties testify at the same time. Greenpeace, et al.
presented the following as expert witnesses: Dr. Ben Malayang III (Dr. Malayang), Dr.
Charito Medina (Dr. Medina), and Dr. Tushar Chakraborty (Dr. Chakraborty). On the
opposing side were the expert witnesses in the persons of Dr. Reynaldo Ebora (Dr. Ebora),
Dr. Saturnina Halos (Dr. Halos), Dr. Flerida Cario (Dr. Cario), and Dr. Peter Davies (Dr.
Davies). Other witnesses who testified were: Atty. Carmelo Segui (Atty. Segui), Ms. Merle
Palacpac (Ms. Palacpac), Mr. Mario Navasero (Mr. Navasero) and Dr. Randy Hautea (Dr.
Hautea).
On November 20, 2012, Biotechnology Coalition of the Philippines, Inc. (BCPI) filed an
Urgent Motion for Leave to Intervene as Respondent.24 It claimed to have a legal interest in
the subject matter of the case as a broad-based coalition of advocates for the advancement
of modern biotechnology in the Philippines.
In its Resolution25 dated January 16, 2013, the CA denied BCPI's motion for intervention
stating that the latter had no direct and specific interest in the conduct of Bt talong field
trials.
On May 17, 2013, the CA rendered a Decision in favor of Greenpeace, et al., as follows:
WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by
us GRANTING the petition filed in this case. The respondents
are DIRECTED to:chanRoblesvirtualLawlibrary
(a) Permanently cease and desist from further conducting bt talong field trials; and
(b) Protect, preserve, rehabilitate and restore the environment in accordance with the
foregoing judgment of this Court.
No costs.
SO ORDERED.26ChanRoblesVirtualawlibrary
The CA found that existing regulations issued by the DA and the Department of Science and
Technology (DOST) are insufficient to guarantee the safety of the environment and health of
the people. Concurring with Dr. Malayang's view that the government must exercise
precaution "under the realm of public policy" and beyond scientific debate, the appellate
court noted the possible irreversible effects of the field trials and the introduction of Bt
talong to the market.
After scrutinizing the parties' arguments and evidence, the CA concluded that the
precautionary principle set forth in Section 1, Rule 20 of the Rules of Procedure for
Environmental Cases27 finds relevance in the present controversy. Stressing the fact that
the "over-all safety guarantee of the bt talong" remains unknown, the appellate court cited
the testimony of Dr. Cario who admitted that the product is not yet safe for consumption
because a safety assessment is still to be done. Again, the Decision quoted from Dr.
Malayang who testified that the question of Bt talong's safety demands maximum
precaution and utmost prudence, bearing in mind the country's rich biodiversity. Amid the
uncertainties surrounding the Bt talong, the CA thus upheld the primacy of the people's
constitutional right to health and a balanced ecology.
Denying the motions for reconsideration filed by ISAAA, EMB/BPI/FPA, UPLB and UPLBFI,
the CA in its Resolution dated September 20, 2013 rejected the argument of UPLB that the
appellate court's ruling violated UPLB's constitutional right to academic freedom. The
appellate court pointed out that the writ of kalikasan originally issued by this Court did not
stop research on Bt talong but only the particular procedure adopted in doing field trials and
only at this time when there is yet no law in the form of a congressional enactment for
ensuring its safety and levels of acceptable risks when introduced into the open
environment. Since the writ stops the field trials of Bt talong as a procedure but does not
stop Bt talong research, there is no assault on academic freedom.
The CA then justified its ruling by expounding on the theory that introducing a genetically
modified plant into our ecosystem is an "ecologically imbalancing act." Thus:
We suppose that it is of universal and general knowledge that an ecosystem is a universe of
biotic (living) and non-biotic things interacting as a living community in a particular space
and time. In the ecosystem are found specific and particular biotic and non-biotic entities
which depend on each other for the biotic entities to survive and maintain life. A critical
element for biotic entities to maintain life would be that their populations are in a proper
and natural proportion to others so that, in the given limits of available non-biotic entities in
the ecosystem, no one population overwhelms another. In the case of the Philippines, it is
considered as one of the richest countries in terms of biodiversity. It has so many plants
and animals. It also has many kinds of other living things than many countries in the world.
We do not fully know how all these living things or creatures interact among themselves.
But, for sure, there is a perfect and sound balance of our biodiversity as created or
brought about by God out of His infinite and absolute wisdom. In other words, every
living creature has been in existence or has come into being for a purpose. So, we humans
are not supposed to tamper with any one element in this swirl of interrelationships among
living things in our ecosystem. Now, introducing a genetically modified plant in our
intricate world of plants by humans certainly appears to be an ecologically
imbalancing act. The damage that it will cause may be irreparable and irreversible.
At this point, it is significant to note that during the hearing conducted by this Court on
November 20, 2012 wherein the testimonies of seven experts were given, Dr. Peter J.
Davies (Ph.D in Plant [Physiology]), Dr. Tuskar Chakraborty (Ph.D in Biochemistry and
Molecular Biology), Dr. Charito Medina (Ph.D in Environmental Biology), Dr. Reginaldo Ebora
(Ph.D in Entomology), Dr. Flerida Cario (Ph.D in Insecticide Toxicology), Dr. Ben Malayang
(Ph.D in Wildland Resource Science) and Dr. Saturnina Halos (Ph.D in Genetics) were in
unison in admitting that bt talong is an altered plant. x x x
xxxx
Thus, it is evident and clear that bt talong is a technology involving the deliberate alteration
of an otherwise natural state of affairs. It is designed and intended to alter natural feed-
feeder relationships of the eggplant. It is a deliberate genetic reconstruction of the eggplant
to alter its natural order which is meant to eliminate one feeder (the borer) in order to give
undue advantage to another feeder (the humans). The genetic transformation is one
designed to make bt talong toxic to its pests (the targeted organisms). In effect, bt
talong kills its targeted organisms. Consequently, the testing or introduction of bt
talong into the Philippines, by its nature and intent, is a grave and present danger
to (and an assault on) the Filipinos' constitutional right to a balanced
ecology because, in any book and by any yardstick, it is an ecologically imbalancing event
or phenomenon. It is a willful and deliberate tampering of a naturally ordained feed-feeder
relationship in our environment. It destroys the balance of our biodiversity. Because it
violates the conjunct right of our people to a balanced ecology, the whole constitutional
right of our people (as legally and logically construed) is violated.
Of course, the bt talong's threat to the human health of the Filipinos as of now remains
uncertain. This is because while, on one hand, no Filipinos has ever eaten it yet, and so,
there is no factual evidence of it actually causing acute or chronic harm to any or a number
of ostensibly identifiable perms, on the other hand, there is correspondingly no factual
evidence either of it not causing harm to anyone. However, in a study published on
September 20, 2012 in "Food and Chemical Toxicology", a team of scientists led by
Professor Gilles-Eric Seralini from the University of Caen and backed by the France-based
Committee of Independent Research and Information on Genetic Engineering came up with
a finding that rats fed with Roundup-tolerant genetically modified corn for two years
developed cancers, tumors and multiple organ damage. The seven expert witnesses who
testified in this Court in the hearing conducted on November 20, 2012 were duly confronted
with this finding and they were not able to convincingly rebut it. That is why we, in deciding
this case, applied the precautionary principle in granting the petition filed in the case at
bench.
Prescinding from the foregoing premises, therefore, because one conjunct right in the whole
Constitutional guarantee is factually and is undoubtedly at risk, and the other still factually
uncertain, the entire constitutional right of the Filipino people to a balanced and healthful
ecology is at risk. Hence, the issuance of the writ of kalikasan and the continuing writ of
mandamus is justified and warranted.28 (AdditionalEmphasis supplied.)
Petitioners' Arguments
G.R. No. 209271
ISAAA advances the following arguments in support of its petition:

I
THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR
WRIT OF CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT THE
SAME IS ALREADY MOOT AND ACADEMIC.
II
WRIT OF CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT THE
SAME RAISES POLITICAL QUESTIONS.
A. IN SEEKING TO COMPEL THE REGULATORY AGENCIES "TO SUBMIT AN ACCEPTABLE
DRAFT OF THE AMENDMENT OF THE NATIONAL BIO-SAFETY FRAMEWORK OF THE
PHILIPPINES, AND DA ADMINISTRATIVE ORDER NO. 08," AND IN PRAYING THAT
THE COURT OF APPEALS "RECOMMEND TO CONGRESS CURATIVE LEGISLATIONS,"
RESPONDENTS SEEK TO REVIEW THE WISDOM OF THE PHILIPPINE REGULATORY
SYSTEM FOR GMOS, WHICH THE COURT OF APPEALS IS WITHOUT JURISDICTION
TO DO SO.
B. WORSE, THE COURT OF APPEALS EVEN HELD THAT THERE ARE NO LAWS
GOVERNING THE STUDY, INTRODUCTION AND USE OF GMOS IN THE PHILIPPINES
AND COMPLETELY DISREGARDED E.O. NO. 514 AND DA- AO 08-2002.
III
WRIT OF CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT
RESPONDENTS FAILED TO EXHAUST ADMINISTRATIVE REMEDIES.
IV
WRIT OF CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT
PRIMARY JURISDICTION OVER THE SAME LIES WITH THE REGULATORY AGENCIES.
THE COURT OF APPEALS EXHIBITED BIAS AND PARTIALITY AND PREJUDGED THE INSTANT
CASE WHEN IT RENDERED THE ASSAILEDDECISION DATED 17 MAY 2013
AND RESOLUTION DATED 20 SEPTEMBER 2013.
VI
THE COURT OF APPEALS GRAVELY ERRED IN GRANTING THE WRIT OF KALIKASAN IN

FAVOR OF RESPONDENTS.
A. THE EVIDENCE ON RECORD SHOWS THAT THE PROJECT PROPONENTS OF THE BT

TALONG FIELD TRIALS COMPLIED WITH ALL ENVIRONMENTAL LAWS, RULES AND
REGULATIONS IN ORDER TO ENSURE THAT THE PEOPLE'S RIGHT TO A BALANCED
AND HEALTHFUL ECOLOGY ARE PROTECTED AND RESPECTED.
B. THE EVIDENCE ON RECORD SHOWS THAT THE BT TALONG FIELD TRIALS DO NOT
CAUSE ENVIRONMENTAL DAMAGE AND DO NOT PREJUDICE THE LIFE, HEALTH AND
PROPERTY OF INHABITANTS OF TWO OR MORE PROVINCES OR CITIES.
C. THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE PRECAUTIONARY

PRINCIPLE IN THIS CASE DESPITE THE FACT THAT RESPONDENTS FAILED TO
PRESENT AN IOTA OF EVIDENCE TO PROVE THEIR CLAIM.
VII
THE COURT OF APPEALS GRAVELY ERRED IN GRANTING A WRIT OF CONTINUING

MANDAMUS AGAINST PETITIONER ISAAA.
VIII
THE COURT OF APPEALS' DECISION DATED 17 MAY 2013 AND RESOLUTION DATED 20
SEPTEMBER 2013 IS AN AFFRONT TO ACADEMIC FREEDOM AND SCIENTIFIC
PROGRESS.29ChanRoblesVirtualawlibrary
G.R. No. 209276
Petitioners EMB, BPI and FPA, represented by the Office of the Solicitor General (OSG)
assails the CA Decision granting the petition for writ of kalikasanand writ of continuing
mandamus despite the failure of Greenpeace, et al. (respondents) to prove the requisites
for their issuance.
Petitioners contend that while respondents presented purported studies that supposedly
show signs of toxicity in genetically engineered eggplant and other crops, these studies are
insubstantial as they were not published in peer-reviewed scientific journals. Respondents
thus failed to present evidence to prove their claim that the Bt talong field trials violated
environmental laws and rules.
As to the application of the precautionary principle, petitioners asserted that its application
in this case is misplaced. The paper by Prof. Seralini which was relied upon by the CA, was
not formally offered in evidence. In volunteering the said article to the parties, petitioners
lament that the CA manifested its bias towards respondents' position and did not even
consider the testimony of Dr. Davies who stated that "Seralini's work has been refuted by
International committees of scientists"30 as shown by published articles critical of Seralini's
work.
Petitioners aver that there was no damage to human health since no Bt talong will be
ingested by any human being during the field trial stage. Besides, if the results of said
testing are adverse, petitioners will not allow the release of Bt talong to the environment, in
line with the guidelines set by EO 514. The CA thus misappreciated the regulatory process
as approval for field testing does not automatically mean approval for propagation of the
same product. And even assuming that the field trials may indeed cause adverse
environmental or health effects, the requirement of unlawful act or omission on the part of
petitioners or any of the proponents, was still absent. Respondents clearly failed to prove
there was any unlawful deviation from the provisions of DAO 08-2002. The BPI's factual
finding on the basis of risk assessment on the Bt talong project should thus be accorded
respect, if not finality by the courts.
Petitioners likewise fault the CA in giving such ambiguous and general directive for them to
protect, preserve, rehabilitate and restore the environment, lacking in specifics which only
indicates that there was really nothing to preserve, rehabilitate or restore as there was
nothing damaged or adversely affected in the first place. As to the supposed inadequacy
and ineffectiveness of existing regulations, these are all political questions and policy issues
best left to the discretion of the policy-makers, the Legislative and Executive branches of
government. Petitioners add that the CA treads on judicial legislation when it recommended
the re-examination of country's existing laws and regulations governing studies and
research on GMOs.
GR. No. 209301
Petitioner UPLBFI argues that respondents failed to adduce the quantum of evidence
necessary to prove actual or imminent injury to them or the environment as to render the
controversy ripe for judicial determination. It points out that nowhere in the testimonies
during the "hot-tub" presentation of expert witnesses did the witnesses for respondents
claim actual or imminent injury to them or to the environment as a result of the Bt
talong field tests, as they spoke only of injury in the speculative, imagined kind without any
factual basis. Further, the petition for writ of kalikasan has been mooted by the termination
of the field trials as of August 10, 2012.
Finding the CA decision as a judgment not based on fact, UPLBFI maintains that by reason
of the nature, character, scale, duration, design, processes undertaken, risk assessments
and strategies employed, results heretofore recorded, scientific literature, the safeguards
and other precautionary measures undertaken and applied, the Bt talong field tests did not
or could not have violated the right of respondents to a balanced and healthful ecology. The
appellate court apparently misapprehended the nature, character, design of the field trials
as one for "consumption" rather than for "field testing" as defined in DAO 08-2002, the sole
purpose of which is for the "efficacy" of the eggplant variety's resistance to the FSB.
Against the respondents' bare allegations, UPLBFI submits the following "specific facts borne
by competent evidence on record" (admitted exhibits) 31:
118. Since the technology's inception 50 years ago, studies have shown that genetically
modified crops, including Bt talong, significantly reduce the use of pesticides by
farmers in growing eggplants, lessening pesticide poisoning to humans.
119. Pesticide use globally has decreased in the last [14-15] years owing to the use of
insect-resistant genetically modified crops. Moreover, that insect-resistant genetically
modified crops significantly reduce the use of pesticides in growing plants thus
lessening pesticide poisoning in humans, reducing pesticide load in the environment
and encouraging more biodiversity in farms.
120. Global warming is likewise reduced as more crops can be grown.
121. Transgenic Bacillus thuringensis (Bt) cotton has had a major impact on the Australian
cotton industry by largely controlling Lepidopteran pests. To date, it had no
significant impact on the invertebrate community studied.
122. Feeding on CrylAcc contaminated non-target herbivores does not harm predatory
heteropterans and, therefore, cultivation of Btcotton may provide an opportunity for
conservation of these predators in cotton ecosystems by reducing insecticide use.
123. The Bt protein in Bt corn only affects target insects and that Bt corn pollens do not
negatively affect monarch butterflies.
124. The field trials will not cause "contamination" as feared by the petitioners because
flight distance of the pollinators is a deterrent to cross pollination. Studies reveal that
there can be no cross pollination more than a fifty (50) meter distance.
xx
xx
135. There is a 50 year history of safe use and consumption of agricultural products
sprayed with commercial Bt microbial pesticides and a 14 year history of safe
consumption of food and feed derived from Bt crops.
xx
xx
140. In separate reviews by the European Food Safety Agency (EFSA) and the Food
Standards Australia and New Zealand (FSANZ), the "work" of one Prof. Seralini relied
upon by [respondents] was dismissed as "scientifically flawed", thus providing no
plausible basis to the proposition that Bt talong is dangerous to public health.
141. In a learned treatise by James Clive entitled "Global Status of Commercialized

Biotech/GM Crops: 2011," the Philippines was cited to be the first country in the
ASEAN region to implement a regulatory system for transgenic crops (which includes
DAO 08-[2]002). Accordingly, the said regulatory system has also served as a model
for other countries in the region and other developing countries outside of Asia.
On the precautionary principle, UPLBFI contends that the CA misapplied it in this case. The
testimonial and documentary evidence of respondents, taken together, do not amount to
"scientifically plausible" evidence of threats of serious and irreversible damage to the
environment. In fact, since BPI started regulating GM crops in 2002, they have monitored
171 field trials all over the Philippines and said agency has not observed any adverse
environmental effect caused by said field trials. Plainly, respondents failed to show proof of
"specific facts" of environmental damage of the magnitude contemplated under the Rules of
Procedure for Environmental Cases as to warrant sanctions over the Bt talong field trials.
Lastly, UPLBFI avers that the Bt talong field trial was an exercise of the constitutional liberty
of scientists and other academicians of UP, of which they have been deprived without due
process of law. Stressing that a possibility is not a fact, UPLBFI deplores the CA decision's
pronouncement of their guilt despite the preponderance of evidence on the environmental
safety of the field trials, as evident from its declaration that "the over-all safety guarantee
of Bt talong remains to be still unknown." It thus asks if in the meantime, petitioners must
bear the judicial stigma of being cast as violators of the right of the people to a balanced
and healthful ecology for an injury or damage unsubstantiated by evidence of scientific
plausibility.
G.R. No. 209430

Petitioner UP reiterates UPLBFI's argument that the Bt talong field testing was conducted in
the exercise of UPLB's academic freedom, which is aconstitutional right. In this case, there
is nothing based on evidence on record or overwhelming public welfare concern, such as the
right of the people to a balanced and healthful ecology, which would warrant restraint on
UPLB's exercise of academic freedom. Considering that UPLB complied with all laws, rules
and regulations regarding the application and conduct of field testing of GM eggplant, and
was performing such field tests within the prescribed limits of DAO 08-2002, and there
being no harm to the environment or prejudice that will be caused to the life, health or
property of inhabitants in two or more cities or provinces, to restrain it from performing the
said field testing is unjustified.
Petitioner likewise objects to the CA's application of the precautionary principle in this case,
in violation of the standards set by the Rules of Procedure for Environmental Cases. It
points out that the Bt eggplants are not yet intended to be introduced into the Philippine
ecosystem nor to the local market for human consumption.
Cited were the testimonies of two expert witnesses presented before the CA: Dr. Navasero
who is an entomologist and expert in integrated pest management and insect taxonomy,
and Dr. Davies, a member of the faculty of the Department of Plant Biology and Horticulture
at Cornell University for 43 years and served as a senior science advisor in agricultural
technology to the United States Department of State. Both had testified that based on
generally accepted and scientific methodology, the field trial of Bt crops do not cause
damage to the environment or human health.
Petitioner assails the CA in relying instead on the conjectural statements of Dr. Malayang. It
asserts that the CA could not support its Decision and Resolution on the pure conjectures
and imagination of one witness. Basic is the rule that a decision must be supported by
evidence on record.
Respondents' Consolidated Comment
Respondents aver that Bt talong became the subject of public protest in our country
precisely because of the serious safety concerns on the impact of Bt talong toxin on human
and animal health and the environment through field trial contamination. They point out
that the inherent and potential risks and adverse effects of GM crops are recognized in the
Cartagena Protocol and our biosafety regulations (EO 514 and DAO 08-2002).
Contamination may occur through pollination, ingestion by insects and other animals, water
and soil run off, human error, mechanical accident and even by stealing was inevitable in
growing Bt talong in an open environment for field trial. Such contamination may manifest
even after many years and in places very far away from the trial sites.
Contrary to petitioners' claim that they did not violate any law or regulation, or unlawful
omission, respondents assert that, in the face of scientific uncertainties on the safety and
effects of Bt talong, petitioners omitted their crucial duties to conduct environmental impact
assessment (EIA); evaluate health impacts; get the free, prior and informed consent of the
people in the host communities; and provide remedial and liability processes in the approval
of the biosafety permit and conduct of the field trials in its five sites located in five
provinces. These omissions have put the people and the environment at serious and
irreversible risks.
Respondents cite the numerous studies contained in "Adverse Impacts of Transgenic

Crops/Foods: A Compilation of Scientific References with Abstracts" printed by Coalition for
a GMO-Free India; a study on Bt corn in the Philippines, "Socio-economic Impacts of
Genetically Modified Corn in the Philippines" published by MASIPAG in 2013; and the
published report of the investigation conducted by Greenpeace, "White Corn in the
Philippines: Contaminated with Genetically Modified Corn Varieties" which revealed positive
results for samples purchased from different stores in Sultan Kudarat, Mindanao, indicating
that they were contaminated with GM corn varieties, specifically the herbicide tolerant
and Bt insect resistant genes from Monsanto, the world's largest biotech company based in
the US.
To demonstrate the health hazards posed by Bt crops, respondents cite the following
sources: the studies of Drs. L. Moreno-Fierros, N. Garcia, R. Gutierrez, R. Lopez-Revilla, and
RI Vazquez-Padron, all from the Universidad Nacional Autonoma de Mexico; the conclusion
made by Prof. Eric-Gilles Seralini of the University of Caen, France, who is also the president
of the Scientific Council of the Committee for Independent Research and Information on
Genetic Engineering (CRIIGEN), in his review, commissioned by Greenpeace, of Mahyco's
data submitted in support of the application to grow and market Bt eggplant in India; and
the medical interpretations of Prof. Seralini's findings by Filipino doctors Dr. Romeo Quijano
of the University of the Philippines-Philippine General Hospital and Dr. Wency Kiat, Jr. of St.
Luke's Medical Center (Joint Affidavit).
According to respondents, the above findings and interpretations on serious health risks are
strengthened by the findings of a review of the safety claims in the MAHYCO Dossier
authored by Prof. David A. Andow of the University of Minnesota, an expert in
environmental assessment in crop science. The review was made upon the request in 2010
of His Honorable Shri Jairam Ramesh of the Ministry of Environment and Forests of India,
where MAHYCO is based. MAHYCO is the corporate creator and patent owner of the Bt gene
inserted in Bt talong.
The conclusions of health hazards from the above studies were summarized32 by
respondents, as follows:
Studies/interpretation by Conclusion/interpretation
Drs. L. Moreno-Fierros, N. Garcia, For Bt modified crops (like Bt talong), there is concern
R. Gutierrez, R. over its potential
Lopez-Revilla, and RI Vazquez- allergenicity. CrylAcc (the gene inserted in Bt talong)

Padron protoxin is a potent immunogen (triggers immune
response); the protoxin is immunogenic by both the
intraperitoneal (injected) and intragastric (ingested)
route; the immune response to the protoxin is both
systemic and mucosal; and CrylAcc protoxin binds to
surface proteins in the mouse small intestine. These
suggest thatextreme caution is required in the use
of CrylAcc in food crops.
Prof. Eric-Gilles Seralini His key findings showed statistical significant

differences between group of animals fed GM and
non-GM eggplant that raise food safety concerns
and warrant further investigation.
Dr. Romeo Quijano & Dr. Wency Interpreting Prof. Seralini's findings, the altered
Kiat, Jr. condition of ratssymptomatically indicate hazards
for human health.
Prof. David A. Andow The MAHYCO dossier is inadequate to support the

needed environmental risk assessment; MAHYCO's
food safety assessment does not comply with
international standards; and that MAHYCO relied on
dubious scientific assumptions and disregarded real
environmental threats.
As to environmental effects, respondents said these include the potential for living modified
organisms, such as Bt talong tested in the field or released into the environment, to
contaminate non-GM traditional varieties and other wild eggplant relatives and turn them
into novel pests, outcompete and replace their wild relatives, increase dependence on
pesticides, or spread their introduced genes to weedy relatives, potentially creating
superweeds, and kill beneficial insects.
Respondents then gave the following tabulated summary 33 of field trial contamination
cases drawn from various news reports and some scientific literature submitted to the
court:
What happened Impact How did it occur
During 2006 and 2007, traces In July 2011, Bayer eventually Field trials were
of three varieties of agreed to a $750m US dollar conducted between the
unapproved genetically settlement resolving claims with mid-1990s and early
modified rice owned by Bayer about 11,000 US farmers for 2000s. The US
Crop Science were found in US market losses and clean-up Department of
rice exports in over 30 costs. Agriculture (USDA)
countries worldwide. reported these field
The total costs to the rice trials were the likely
industry are likely to have been sources of the
over $1bn worldwide. contamination between
the modified rice and
conventional varieties.
However, it was unable
to conclude [if it] was
caused by gene flow
(cross pollination) or
mechanical mixing.
In 2009, unauthorised Canada lost exports to its main In the late 1980s a
GElinseed (also known as European market worth hundreds public research
'flax') produced by a public of millions of dollars and non- institution, the Crop
research institution was GElinseed farmers have faced Development Centre in
discovered in food in several huge costs and market losses. Saskatoon, Saskat-
EU countries, having been chewan, developed a
imported from Canada. GElinseed variety
FP96believed to be
the origin of the
contamination.
During 2004, the Thai Exports of papaya to Europe GEpapaya is not grown
government found that have been hit because of fears commercially in
papaya samples from 85 that contamination could have Thailand, so it was
farms were genetically spread. The Thai government clear that the
modified. The contamination said it was taking action to contamination
continued into 2006 and it is destroy the contaminated trees. originated from the
likely that the GE government station
contamination reached the experimentally
food chain. breeding GE papaya
trees. Tests that
showed that one third
of papaya orchards
tested in the eastern
province of Rayong
and the north-eastern
provinces of
Mahasarakham,
Chaiyaphum and
Kalasinhad GE-
contaminated papaya
seeds in July 2005. The
owners said that a
research station gave
them the seeds.
In the US in 2002, seeds from Prodigene, the company Seeds from the
a GEmaize pharma-crop responsible, was fined $3m for GEmaize crop sprouted
containing a pig vaccine grew tainting half a million bushels of voluntarily in the
independently among normal soya bean with a trial vaccine following season.
soybean crops. used to prevent stomach upsets
in piglets. Prodigene agreed to
pay a fine of $250,000 and to
repay the government for the
cost of incinerating the soya bean
that had been contaminated with
genetically altered corn.
In 2005, Greenpeace The European Commission The source of the

discovered that GE rice seeds adopted emergency measures contamination appears
had been illegally sold in (on 15 August 2008) to require to have been the result
Hubei, China. Then, in 2006, compulsory certification for the of illegal planting of
GE rice event Bt63 was found imports of Chinese rice products GEseeds. Seed
in baby food sold in Beijing, that could contain the companies in China
Guangzhou and Hong Kong. In unauthorised GE rice Bt63. found to have sold
late 2006, GE rice Bt63 was GErice hybrid seed to
found to be contaminating The Chinese government took farmers operated
exports in Austria, France, the several measures to try to stop directly under the
UK and Germany. In 2007 it the contamination, which university developing
was again found in EU imports included punishing seed GM rice. It has been
to Cyprus, Germany, Greece, companies, confiscating GEseed, reported that the key
Italy and Sweden. destroying GErice grown in the scientist sat on the
field and tightening control over board of one GEseed
the food chain. company.
In 2005, the European The European Commission The contamination
Commission announced that blocked US grain import unless arose because
illegal Bt10 GEmaize produced they could be guaranteed free of Syngenta's quality
by GEseed company Syngenta Bt10. The USDA fined Syngenta control procedures did
had entered the European $375,000. There are no figures not differentiate
food chain. The GEmaize Bt10 for the wider costs. between Bt10 and its
contains a marker gene that sister commercial line,
codes for the widely-used Bt11. As a result, the
antibiotic ampicillin, while the experimental and
Bt11 does not. According to substantially different
the international Codex Bt10 line was
Alimentarius Guideline for mistakenly used in
Conduct of Food Safety breeding. The error
Assessment of Foods Derived was detected four
from Recombinant- years later when one
DNA:Plants: 'Antibiotic of the seed companies
resistance genes used in food developing Bt11
production that encode varieties adopted more
resistance to clinically used sophisticated analytical
antibiotics should not be techniques.
present in foods' because it
increases the risk of antibiotic
resistance in the population.
Refuting the claim of petitioners that contamination is nil or minimal because the scale of Bt
talong field trial is isolated, restricted and that "each experiment per site per season
consists of a maximum net area planted to Bt eggplant of between 480 sq. meters to 1,080
sq. meters,"34 respondents emphasize that as shown by the above, contamination knows no
size and boundaries in an open environment.
With regard to the required geographical coverage of environmental damage for the
issuance of writ of kalikasan, respondents assert that while the Bt talong field trials were
conducted in only five provinces, the environmental damage prejudicial to health extends
beyond the health of the present generation of inhabitants in those provinces.
On petitioners' insistence in demanding that those who allege injury must prove injury,
respondents said that biosafety evidence could not be readily contained in a corpus delicti to
be presented in court. Indeed, the inherent and potential risks and adverse effects brought
by GMOs are not like dead bodies or wounds that are immediately and physically identifiable
to an eyewitness and which are resulting from a common crime. Precisely, this is why the
Cartagena Protocol's foundation is on the precautionary principle and development of sound
science and its links, to social and human rights law through its elements of public
awareness, public participation and public right to know. This is also why the case was
brought under the Rules of Procedure for Environmental Cases and not under ordinary or
other rules, on the grounds of violation of the rights of the Filipino people to health, to a
balanced and healthful ecology, to information on matters of national concern, and to
participation. The said Rules specifically provides that the appreciation of evidence in a case
like this must be guided by the precautionary principle.
As to the non-exhaustion of administrative remedies being raised by petitioners as ground

to dismiss the present petition, respondents said that nowhere in the 22 sections of DAO
08-2002 that one can find a remedy to appeal the decision of the DA issuing the field
testing permit. What is only provided for is a mechanism for applicants of a permit, not
stakeholders like farmers, traders and consumers to appeal a decision by the BPI-DA in case
of denial of their application for field testing. Moreover, DAO 08-2002 is silent on appeal
after the issuance of the biosafety permit.
Finally, on the propriety of the writ of continuing mandamus, respondents argue that EO
514 explicitly states that the application of biosafety regulations shall be made in
accordance with existing laws and the guidelines therein provided. Hence, aside from risk
assessment requirement of the biosafety regulations, pursuant to the PEISS law and
Sections 12 and 13 of the Philippine Fisheries Code of 1998, an environmental impact
statement (EIS) is required and an environmental compliance certificate (ECC) is necessary
before such Bt crop field trials can be conducted.
Petitioners' Replies
G.R. No. 209271
ISAAA contends that the Precautionary Principle and the Rules of Procedure for
Environmental Cases do not empower courts to adjudicate a controversy that is moot and
academic. It points out that respondents failed to satisfy all the requirements of the
exception to the rule on actual controversies. The Biosafety Permit is valid for only two
years, while the purported stages in the commercialization, propagation and registration
of Bt talong still cannot confer jurisdiction on the CA to decide a moot and academic case.
As to the propriety of the writ of continuing mandamus, ISAAA maintains that public
petitioners do not have "mandatory" and "ministerial" duty to re-examine and reform the
biosafety regulatory system, and to propose curative legislation. The law (EO 514) cited by
respondents does not impose such duty on public petitioners. As for the Cartagena Protocol,
it laid down a procedure for the evaluation of the Protocol itself, not of the Philippine
biosafety regulatory system. ISAAA stresses that the CA is without jurisdiction to review the
soundness and wisdom of existing laws, policy and regulations. Indeed, the questions posed
by the respondents are political questions, which must be resolved by the executive and
legislative departments in deference to separation of powers.
On the availability of administrative remedies, ISAAA asserts that respondents are mistaken
in saying that these are limited to appeals. The concerned public may invoke Section 8 (G)
of DAO 08-2002 which grants them the right to submit their written comments on the BPI
regarding the field testing permits, or Section 8 (P) for the revocation and cancellation of a
field testing permit. Respondents' failure to resort to the internal mechanisms provided in
DAO 08-2002 violates the rule on exhaustion of administrative remedies, which warrants
the dismissal of respondents' petition.
ISAAA points out that under Section 7 of DAO 08-2002, the BPI is the approving authority
for field testing permits, while under Title IV, Chapter 4, Section 19 of the Administrative
Code of 1987, the DA through the BPI, is responsible for the production of improved
planting materials and protection of agricultural crops from pests and diseases. In bypassing
the administrative remedies available, respondents not only failed to exhaust a less costly
and speedier remedy, it also deprived the parties of an opportunity to be heard by the BPI
which has primary jurisdiction and knowledgeable on the issues they sought to raise.
Rejecting the scientific data presented by the respondents, petitioners found Annex "A" of
the Consolidated Comment as irrelevant because it was not formally offered in evidence and
are hearsay. Majority of those records contain incomplete information and none of them
pertain to the Bt talong. Respondents likewise presented two misleading scientific studies
which have already been discredited: the 2013 study by B.P. Mezzomo, et al. and the study
by Prof. Seralini in 2012. Petitioner notes that both articles have been withdrawn from
publication.
ISAAA further describes Annex "A" as a mere compilation of records of flawed studies with
only 126 usable records out of the 338 records. In contrast, petitioner cites the work of
Nicolia, A., A. Manzo, F. Veronesi, and D. Rosellini, entitled "An overview of the last 10
years of genetically engineered crop safety research." The authors evaluated 1,783 scientific
records of GE crop safety research papers, reviews, relevant opinions and scientific reports
from 2002-2012. Their findings concluded that "the scientific research conducted so far has
not detected any significant hazards directly connected with the use of GE crops." In the
article "Impacts of GM crops on biodiversity," in which scientific findings concluded that
"[o]verall, x x x currently commercialized GM crops have reduced the impacts of agriculture
on biodiversity, through enhanced adoption of conservation tillage practices, reduction of
insecticide use and use of more environmentally benign herbicides and increasing yields to
alleviate pressure to convert additional land into agricultural use."
Debunking the supposed inherent risks and potential dangers of GMOs, petitioner cites EUR
24473-A decade of EU-funded GMO research (2001-2010), concluded from more than 130
research projects, covering a period of 25 years of research, and involving more than 500
independent research groups, that "biotechnology, and in particular GMOs, are not per se
more risky than e.g. conventional plant breeding technologies." Another article cited is
"Assessment of the health impact of GM plant diets in long-term and multigenerational
animal feeding trials: A literature review" which states that scientific findings show that GM
crops do not suggest any health hazard, and are nutritionally equivalent to their non-GM
counterparts and can be safely used in food and feed.
Addressing the studies relied upon by respondents on the alleged adverse environmental
effects of GM crops, petitioner cites the article "Ecological Impacts of Genetically Modified
Crops: Ten Years of Field Research and Commercial Cultivation" which concluded that
"[T]he data available so far provide no scientific evidence that the cultivation of the
presently commercialized GM crops has caused environmental harm." A related article, "A
Meta-Analysis of Effects of Bt Cotton and Maize on Non-target Invertebrates" states that
scientific findings show that non-target insects are more abundant in GM crop fields
like Bt cotton and Bt maize fields than in non-GM crops that are sprayed with insecticides.
The two tables/summaries of studies submitted by respondents are likewise rejected by

ISAAA, which presented the following comments and criticisms on each of the paper/article
cited, thus:
With respect to the study made by L. Moreno-Fierros, et al., the same should be rejected
considering that this was not formally offered as evidence by respondents. Hence, the same
may not be considered by the Honorable Court. (Section 34, Rule 132 of the Rules of
Court;Heirs of Pedro Pasag v. Spouses Parocha, supra)
Further, the study is irrelevant and immaterial. The CrylAcc protein used in the study was
from engineered E. coli and may have been contaminated by endotoxin. The CrylAcc used in
the study was not from Bt talong. Hence, respondents' attempt to extrapolate the
interpretation and conclusion of this study to Bt talong is grossly erroneous and calculated
to mislead and deceive the Honorable Court.
Moreover, in a review by Bruce D. Hammond and Michael S. Koch of the said study by L.
Moreno-Fierros, et al., which was published in an article entitled A Review of the Food
Safety of Bt Crops, the authors reported that Adel-Patient, et al. tried and failed to
reproduce the results obtained by the study made by L. Moreno-Fierros, et al. The reason is
because of endotoxin contamination in the preparation of theCrylAc protein. Further, when
purified Cry protein was injected to mice through intra-gastric administration, there was no
impact on the immune response of the mice.
In addition, the biological relevance of the study made by L. Moreno-Fierros, et al. to

assessing potential health risks from human consumption of foods derived from Bt crops can
be questioned because the doses tested in mice is irrelevant to human dietary exposure,i.e.,
the doses given were "far in excess of potential human intakes".
With respect to the interpretation made by Prof. Eric-Gilles Seralini, the same is not entitled
to any weight and consideration because his sworn statement was not admitted in evidence
by the Court of Appeals.
Further, Seralini's findings are seriously flawed. Food safety experts explained the
differences observed by Seralini's statistical analysis as examples of random biological
variation that occurs when many measurements are made on test animals, and which have
no biological significance. Hence, there are no food safety concerns. Further, petitioner
ISAAA presented in evidence the findings of regulatory bodies, particularly the EFSA and the
FSANZ, to controvert Seralini's findings. The EFSA and the FSANZ rejected Seralini's
findings because the same were based on questionable statistical procedure employed
in maize in 2007.
In addition, it must be pointed out that the Indian regulatory authority, GEAC,
has not revised its earlier decision approving the safety of Bteggplant notwithstanding the
findings of Seralini's assessment. In effect, Seralini's findings and interpretation were
rejected by the Indian regulatory agency.
With respect to the interpretation made by Drs. Romeo Quijano and Wency Kiat, the same
is not entitled to any weight and consideration because the Court of Appeals did not admit
their sworn statement. Further, Drs. Romeo Quijano and Wency Kiat sought to interpret a
seriously flawed study, making their sworn statements equally flawed.
In an attempt to mislead the Honorable Court, respondents tried to pass off the review of
Prof. David A. Andow as the work of the National Academy of Sciences of the USA. Such
claim is grossly misleading. In truth, as Prof. David A. Andow indicated in the preface,
the report was produced upon the request of Aruna Rodriguez, a known anti-GM
campaigner.
Further, Prof. David A. Andow's review did not point to any negative impact to the
environment of Mahyco's Bt brinjal (Indian name for Bt talong) during the entire period of
conduct of field trials all over the country. He concluded, however, that the dossier is
inadequate for ERA. This is perplexing considering this is the same gene that has been used
in Bt cotton since 1996. Scores of environmental and food safety risk assessment studies
have been conducted and there is wealth of information and experience on its safety.
Various meta-analyses indicate that delaying the use of this already effective Bt brinjal for
managing this devastating pest only ensures the continued use of frequent insecticide
sprays with proven harm to human and animal health and the environment and loss of
potential income of resource-poor small farmers.
Notwithstanding the conclusions of Prof. David A. Andow, to date, it is worth repeating that
the Indian regulatory body, GEAC, has not revised its earlier decision approving the safety
of Bt eggplant based on the recommendation of two expert committees which found the
Mahyco regulatory dossier compliant to the ERA stipulated by the Indian regulatory body. In
effect, like Seralini, Andow's findings and interpretation were also rejected by the Indian
regulatory agency.35ChanRoblesVirtualawlibrary
Petitioner reiterates that the PEIS law does not apply to field testing of Bt talong and the
rigid requirements under Section 8 of DAO 08-2002 already takes into consideration any
and all significant risks not only to the environment but also to human health. The
requirements under Sections 26 and 27 of the Local Government Code are also inapplicable
because the field testing is not among the six environmentally sensitive activities mentioned
therein; the public consultations and prior local government unit (LGU) approval, were
nevertheless complied with. Moreover, the field testing is an exercise of academic freedom
protected by the Constitution, the possibility of Bt talong's commercialization in the future is
but incidental to, and fruit of the experiment.
As to the "commissioned studies" on Bt corn in the Philippines, petitioner asserts that these
are inadmissible, hearsay and unreliable. These were not formally offered in evidence; self-
serving as it was conducted by respondents Greenpeace and MASIPAG themselves; the
persons who prepared the same were not presented in court to identify and testify on its
findings; and the methods used in the investigation and research were not scientific. Said
studies failed to establish any correlation between Bt corn and the purported environmental
and health problems.
G.R. No. 209276
EMB, BPI and FPA joined in objecting to Annex "A" of respondents' consolidated comment,
for the same reasons given by ISAAA. They noted that the affidavit of Prof. Seralini, and the
joint affidavit of Dr. Kiat and Dr. Quijano were denied admission by the CA. Given the failure
of the respondents to present scientific evidence to prove the claim of environmental and
health damages, respondents are not entitled to the writ of kalikasan.
Public petitioners reiterate that in issuing the Biosafety Permits to UPLB, they made sure
that the latter complied with all the requirements under DAO 08-2002, including the
conduct of risk assessment. The applications for field testing of Bt talong thus underwent
the following procedures:
Having completed the contained experiment on the Bt talong, UPLB filed with BPI several
applications for issuance of Biosafety Permits to conduct multi-locational field testing of Bt
talong. Even before the proponent submitted its application, petitioner BPI conducted a
consultative meeting with the proponent to enlighten the latter about the requirements set
out by DA AO No. 8.
Thereafter, petitioner BPI evaluated UPLB's applications vis-a-vis the requirements of

Section 8 of DA AO No. 8 and found them to be sufficient in form and substance, to wit:
First. The applications were in the proper format and contained all of the relevant
information as required in Section 8 (A) (1) of DA AO No. 08.
Second. The applications were accompanied by a (i) Certification from the NCBP that the
regulated article has undergone satisfactory testing under contained conditions in the
Philippines, (ii) technical dossier consisting of scientific literature and other scientific
materials relied upon by the applicant showing that Bt talong will not pose any significant
risks to human health and the environment, and (iii) copy of the proposed PIS for Field
Testing as prescribed by Section 8 (A) (2) of DA AO No. 08; and
Third. The applications contained the Endorsement of proposal for field testing, duly
approved by the majority of all the members of the respective Institutional Biosafety
Committees (IBC), including at least one community representative, as required by Section
8 (E) of DA AO No. 08.
a. Under Sections 1 (L) and 8 (D) of DA AO No. 08, the IBC is responsible for the initial
evaluation of the risk assessment and risk management strategies of the applicant for field
testing using the NCBP guidelines. The IBC shall determine if the data obtained under
contained conditions provide sufficient basis to authorize the field testing of the
regulated article.In making the determination, the IBC shall ensure that field testing
does not pose any significant risks to human health and the environment. The IBC
may, in its discretion, require the proponent to perform additional experiments under
contained conditions before acting on the field testing proposal. The IBC shall either endorse
the field testing proposal to the BPI or reject it for failing the scientific risk assessment.
b. Relatedly, UPLB had previously complied with Section 1 (L) of DA AO No. 08 which
requires an applicant for field testing to establish an IBC in preparation for the field testing
of a regulated article and whose membership has been approved by the BPI. Section 1 (L)
of DA AO No. 08, requires that the IBC shall be composed of at least five (5) members,
three (3) of whom shall be designated as "scientist-members" who shall possess scientific
and technological knowledge and expertise sufficient to enable them to evaluate and
monitor properly any work of the applicant relating to the field testing of a regulated article,
and the other members are designated as "community representatives" who are in a
position to represent the interest of the communities where the field testing is to be
conducted.
Before approving the intended multi-locations [field] trials, petitioner BPI, pursuant to
Section 8 (F) of DA AO No. 08, forwarded the complete documents to three (3) independent
Scientific Technical Review Panel (STRP) members. Pending receipt of the risk assessment
reports of the three STRP members, petitioner BPI conducted its own risk assessment.
Thereafter, on separate occasions, petitioner BPI received the final risk assessment reports
of the three STRP members recommending the grant of Biosafety Permits to UPLB after a
thorough risk assessment and evaluation of UPLB's application for field trial of Bt talong.
Meanwhile, petitioner BPI received from UPLB proofs of posting of the PISs for Field Testing
in each concerned barangays and city/municipal halls of the localities having jurisdiction
over its proposed field trial sites.
In addition to the posting of the PISs for Field Testing, petitioner BPI conducted
consultative meetings and public seminars in order to provide public information and in
order to give an opportunity to the public to raise their questions and/or concerns regarding
the Bt talongfield trials.36ChanRoblesVirtualawlibrary
Petitioners maintain that Sections 26 and 27 of the Local Government Code are inapplicable
to the Bt talong field testing considering that its subject matter is not mass production for
human consumption. The project entails only the planting of Bt eggplants and cultivation in
a controlled environment; indeed, the conduct of a field trial is not a guarantee that the Bt
talong will be commercialized and allowed for cultivation in the Philippines.
On the non-exhaustion of administrative remedies by the respondents, petitioners note that

during the period of public consultation under DAO 08-2002, it is BPI which processes
written comments on the application for field testing of a regulated article, and has the
authority to approve or disapprove the application. Also, under Section 8 (P), BPI may
revoke a biosafety permit issued on the ground of, among others, receipt of new
information that the field testing poses significant risks to human health and the
environment. Petitioners assert they were never remiss in the performance of their
mandated functions, as shown by their immediate action with respect to the defective
certification of posting of PIS in Kabacan, North Cotabato. Upon receiving the letter-
complaint on January 24, 2012, BPI readily ordered their re-posting. The same incident
occurred in Davao City, where BPI refused to lift the suspension of biosafety permits until
"rectification of the conditions for public consultation is carried out."
To underscore respondents' blatant disregard of the administrative process, petitioners refer

to documented instances when respondents took the law in their own hands. Greenpeace
barged into one of the Bt talong field trial sites at Bgy. Paciano Rizal, Bay, Laguna, forcibly
entered the entrance gate through the use of a bolt cutter, and then proceeded to uproot
the experimental crops without permission from BPI or the project proponents. Petitioners
submit that the non-observance of the doctrine of exhaustion of administrative remedies
results in lack of cause of action, one of the grounds under theRules of Court justifying the
dismissal of a complaint.
Petitions-in-Intervention
Crop Life Philippines, Inc. (Crop Life)
Crop Life is an association of companies which belongs to a global (Crop Life International)
as well as regional (Crop Life Asia) networks of member-companies representing the plant
science industry. It aims to "help improve the productivity of Filipino farmers and contribute
to Philippine food security in a sustainable way." It supports "innovation, research and
development in agriculture through the use of biology, chemistry, biotechnology, plant
breeding, other techniques and disciplines."
On procedural grounds, Crop Life assails the CA in rendering judgment in violation of

petitioners' right to due process because it was prevented from cross-examining the
respondents' expert witnesses and conducting re-direct examination of petitioners' own
witnesses, and being an evidently partial and prejudiced court. It said the petition for writ
of kalikasan should have been dismissed outright as it effectively asks the Court to engage
in "judicial legislation" to "cure" what respondents feel is an inadequate regulatory
framework for field testing of GMOs in the Philippines. Respondents also violated the
doctrine of exhaustion of administrative remedies, and their petition is barred by estoppel
and laches.
Crop Life concurs with the petitioners in arguing that respondents failed to specifically allege
and prove the particular environmental damage resulting from the Bt talong field testing. It
cites the scientific evidence on record and the internationally accepted scientific standards
on GMOs and GMO field testing, and considering the experience of various countries
engaged in testing GMOs, telling us that GMO field testing will not damage the environment
nor harm human health and more likely bring about beneficial improvements.
Crop Life likewise assails the application of the Precautionary Principle by the CA which
erroneously equated field testing of Bt talong with Bt talong itself; failed to recognize that in
this case, there was no particular environmental damage identified, much less proven;
relied upon the article of Prof. Seralini that was retracted by the scientific journal which
published it; there is no scientific uncertainty on the adverse effects of GMOs to
environment and human health; and did not consider respondents' failure to prove the
insufficiency of the regulatory framework under DAO 08-2002.
On policy grounds, Crop Life argues that requiring all organisms/plants to be considered
absolutely safe before any field testing may be allowed, would result in permanently placing
the Philippines in the shadows of more developed nations (whose economies rest on
emerging markets importing products from them). It points out that the testing of Bt
talong specifically addresses defined problems such as the need to curb the misuse of
chemical pesticides.
Biotechnology Coalition of the Philippines (BCP)
BCP is a non-stock, non-profit membership association, a broad-based multi-sectoral

coalition of advocates of modern biotechnology in the Philippines.
Reversal of the CA ruling is sought on the following grounds:

I.
THE COURT OF APPEALS ERRED IN TAKING COGNIZANCE OF THE KALIKASAN PETITION IN

THE ABSENCE OF ANY JUSTICIABLE CONTROVERSY.
II.
EXISTING LEGISLATION AND ADMINISTRATIVE REGULATIONS ALREADY INCORPORATE THE

PRECAUTIONARY PRINCIPLE AS A GUIDING PRINCIPLE IN RELATION TO GMOs.
III.
THE CA DECISION AND THE CA RESOLUTION IMPROPERLY APPLIED THE PRECAUTIONARY

PRINCIPLE.
IV.
THE COURT OF APPEALS' ERRONEOUS APPLICATION OF THE PRECAUTIONARY PRINCIPLE,

IF SUSTAINED, WOULD PRODUCE A DANGEROUS PRECEDENT THAT IS ANTI-PROGRESS,
ANTI-TECHNOLOGY AND, ULTIMATELY, DETRIMENTAL TO THE FILIPINO
PEOPLE.37ChanRoblesVirtualawlibrary
BCP argued that in the guise of taking on a supposed justiciable controversy, despite the Bt
talong field trials having been terminated, the CA entertained a prohibited collateral attack
on the sufficiency of DAO 08-2002. Though not invalidating the issuance, which the CA
knew was highly improper, it nonetheless granted the petition for writ of kalikasan on the
theory that "mere biosafety regulations" were insufficient to guarantee the safety of the
environment and the health of the people.
Also reiterated were those grounds for dismissal already raised by the petitioners: failure to
exhaust administrative remedies and finality of findings of administrative agencies.
BCP further asserts that the application of a stringent "risk assessment" process to
regulated articles prior to any release in the environment for field testing mandated by AO
No. 8 sufficiently complies with the rationale behind the development of the precautionary
principle. By implementing the stringent provisions of DAO 08-2002, in conjunction with the
standards set by EO 514 and the NBF, the government preemptively intervenes and takes
precautionary measures prior to the release of any potentially harmful substance or article
into the environment. Thus, any potential damage to the environment is prevented or
negated. Moreover, international instruments ratified and formally adopted by the
Philippines (CBD and the Cartagena Protocol) provide additional support in the proper
application of the precautionary principle in relation to GMOs and the environment.
On the "misapplication" by the CA of the precautionary principle, BCP explains that the basic
premise for its application is the existence of threat of harm or damage to the environment,
which must be backed by a reasonable scientific basis and not based on mere hypothetical
allegation, before the burden of proof is shifted to the public respondents in a petition for
writ of kalikasan. Here, the CA relied heavily on its observation that "... field trials of bt
talongcould not be declared ... as safe to human health and to ecology, with full scientific
certainty, being an alteration of an otherwise natural state of affairs in our ecology" and
"introducing a genetically modified plant in our intricate world of plants by humans certainly
appears to be an ecologically imbalancing act," among others. BCP finds that this
pronouncement of the CA constitutes an indictment not only against Bt talong but against
all GMOs as well. The appellate court's opinion is thus highly speculative, sweeping and
laced with obvious bias.
There being no credible showing in the record that the conduct of Bt talong field trials
entails real threats and that these threats pertain to serious and irreversible damage to the
environment, BCP maintains that the precautionary principle finds no application in this
case. While Rule 20 of the Rules of Procedure for Environmental Cases states that "[w]hen
there is a lack of full scientific certainty in establishing a causal link between human activity
and environmental effect, the court shall apply the precautionary principle in resolving the
case before it," the CA failed to note that the element of lack of full scientific certainty
pertains merely to the causal link between human activity and environmental effect, and not
the existence or risk of environmental effect.
BCP laments that sustaining the CA's line of reasoning would produce a chilling effect
against technological advancements, especially those in agriculture. Affirming the CA
decision thus sets a dangerous precedent where any and all human activity may be enjoined
based on unfounded fears of possible damage to health or the environment.
Issues
From the foregoing submissions, the Court is presented with the following issues for
resolution:
1. Legal standing of respondents;
2. Mootness;
3. Violation of the doctrines of primary jurisdiction and exhaustion of administrative

remedies;
4. Application of the law on environmental impact statement/assessment on projects

involving the introduction and propagation of GMOs in the country;
5. Evidence of damage or threat of damage to human health and the environment in

two or more provinces, as a result of the Bt talong field trials;
6. Neglect or unlawful omission committed by the public respondents in connection with

the processing and evaluation of the applications for Bt talong field testing; and
7. Application of the Precautionary Principle.

The Court's Ruling
Legal Standing
Locus standi is "a right of appearance in a court of justice on a given question."38 It refers
particularly to "a party's personal and substantial interest in a case where he has sustained
or will sustain direct injury as a result" of the act being challenged, and "calls for more than
just a generalized grievance."39
However, the rule on standing is a matter of procedure which can be relaxed for non-
traditional plaintiffs like ordinary citizens, taxpayers, and legislators when the public interest
so requires, such as when the matter is of transcendental importance, of overreaching
significance to society, or of paramount public interest.40 The Court thus had invariably
adopted a liberal policy on standing to allow ordinary citizens and civic organizations to
prosecute actions before this Court questioning the constitutionality or validity of laws, acts,
rulings or orders of various government agencies or instrumentalities.41
Oposa v. Factor an, Jr.42 signaled an even more liberalized policy on locus standi in public
suits. In said case, we recognized the "public right" of citizens to "a balanced and healthful
ecology which, for the first time in our nation's constitutional history, is solemnly
incorporated in the fundamental law." We held that such right need not be written in the
Constitution for it is assumed, like other civil and political rights guaranteed in the Bill of
Rights, to exist from the inception of mankind and it is an issue of transcendental
importance with intergenerational implications. Such right carries with it the correlative duty
to refrain from impairing the environment.
Since the Oposa ruling, ordinary citizens not only have legal standing to sue for the
enforcement of environmental rights, they can do so in representation of their own and
future generations. Thus:
Petitioners minors assert that they represent their generation as well as generations yet
unborn. We find no difficulty in ruling that they can, for themselves, for others of their
generation and for the succeeding generations, file a class suit. Their personality to sue
in behalf of the succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced and healthful
ecology is concerned. Such a right, as hereinafter expounded, considers the "rhythm and
harmony of nature." Nature means the created world in its entirety. Such rhythm and
harmony indispensably include, inter alia, the judicious disposition, utilization, 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. Needless
to say, every generation has a responsibility to the next to preserve that rhythm and
harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently,
the minors' assertion of their right to a sound environment constitutes, at the same time,
the performance of their obligation to ensure the protection of that right for the generations
to come.43(Emphasis supplied.)
The liberalized rule on standing is now enshrined in the Rules of Procedure for
Environmental Cases which allows the filing of a citizen suit in environmental cases. 44 The
provision on citizen suits in the Rules "collapses the traditional rule on personal and direct
interest, on the principle that humans are stewards of nature," and aims to "further
encourage the protection of the environment."45
There is therefore no dispute on the standing of respondents to file before this Court their
petition for writ of kalikasan and writ of continuing mandamus.
Mootness
It is argued that this case has been mooted by the termination of all field trials on August
10, 2012. In fact, the validity of all Biosafety permits issued to UPLB expired in June 2012.
An action is considered 'moot' when it no longer presents a justiciable controversy because

the issues involved have become academic or dead, or when the matter in dispute has
already been resolved and hence, one is not entitled to judicial intervention unless the issue
is likely to be raised again between the parties.46 Time and again, courts have refrained
from even expressing an opinion in a case where the issues have become moot and
academic, there being no more justiciable controversy to speak of, so that a determination
thereof would be of no practical use or value.47
Nonetheless, courts will decide cases, otherwise moot and academic if: first, there is a
grave violation of the Constitution; second, the exceptional character of the situation and
the paramount public interest is involved; third, when the constitutional issue raised
requires formulation of controlling principles to guide the bench, the bar and the public;
and fourth, the case is capable of repetition yet evading review. 48 We find that the presence
of the second and fourth exceptions justified the CA in not dismissing the case despite the
termination of Bt talong field trials.
While it may be that the project proponents of Bt talong have terminated the subject field
trials, it is not certain if they have actually completed the field trial stage for the purpose of
data gathering. At any rate, it is on record that the proponents expect to proceed to the
next phase of the project, the preparation for commercial propagation of the Bt eggplants.
Biosafety permits will still be issued by the BPI for Bt talong or other GM crops. Hence, not
only does this case fall under the "capable of repetition yet evading review" exception to the
mootness principle, the human and environmental health hazards posed by the introduction
of a genetically modified plant, a very popular staple vegetable among Filipinos, is an issue
of paramount public interest.
Primary Jurisdiction and Exhaustion of Administrative Remedies
In Republic v. Lacap,49 the Court explained the related doctrines of primary jurisdiction and
exhaustion of administrative remedies, as follows:
The general rule is that before a party may seek the intervention of the court, he should
first avail of all the means afforded him by administrative processes. The issues which
administrative agencies are authorized to decide should not be summarily taken from them
and submitted to a court without first giving such administrative agency the opportunity to
dispose of the same after due deliberation.
Corollary to the doctrine of exhaustion of administrative remedies is the doctrine of primary

jurisdiction; that is, courts cannot or will not determine a controversy involving a question
which is within the jurisdiction of the administrative tribunal prior to the resolution of that
question by the administrative tribunal, where the question demands the exercise of sound
administrative discretion requiring the special knowledge, experience and services of the
administrative tribunal to determine technical and intricate matters of fact.
Nonetheless, the doctrine of exhaustion of administrative remedies and the corollary

doctrine of primary jurisdiction, which are based on sound public policy and practical
considerations, are not inflexible rules. There are many accepted exceptions, such as:
(a) where there is estoppel on the part of the party invoking the doctrine; (b) where the
challenged administrative act is patently illegal, amounting to lack of jurisdiction; (c) where
there is unreasonable delay or official inaction that will irretrievably prejudice the
complainant; (d) where the amount involved is relatively small so as to make the rule
impractical and oppressive; (e) where the question involved is purely legal and will
ultimately have to be decided by the courts of justice; (f) where judicial intervention is
urgent; (g) when its application may cause great and irreparable damage; (h) where the
controverted acts violate due process; (i) when the issue of non-exhaustion of
administrative remedies has been rendered moot; (j) when there is no other plain,
speedy and adequate remedy; (k) when strong public interest is involved; and, (1)
in quo warranto proceedings. x x x (Emphasis supplied)
Under DAO 08-2002, the public is invited to submit written comments for evaluation by BPI
after public information sheets have been posted (Section 7[G]). Section 7(P) also provides
for revocation of field testing permit on certain grounds, to wit:
P. Revocation of Permit to Field Test. - A Permit to Field Test may be revoked for any of the
following grounds:
1. Provision of false information in the Application to Field Test;
2. Violation of SPS or biosafety rules and regulations or of any conditions specified in

the permit;
3. Failure to allow the inspection of the field testing site;
4. Receipt by BPI of new information that the field testing of the regulated article poses
significant risks to human health and the environment;
5. Whether the regulated article was imported, misdeclaration of shipment; or
6. Such other grounds as BPI may deem reasonable to prevent significant risks to
human health and the environment.
Respondents sought relief under the Rules of Procedure for Environmental Cases, claiming
serious health and environmental adverse effects of the Bt talong field trials due to
"inherent risks" associated with genetically modified crops and herbicides. They sought the
immediate issuance of a TEPO to enjoin the processing for field testing and registering Bt
talong as herbicidal product in the Philippines, stopping all pending field trials of Bt
talonganywhere in the country, and ordering the uprooting of planted Bt talong in the field
trial sites.
In addition to the TEPO and writ of kalikasan, respondents also sought the issuance of a writ
of continuing mandamus commanding the respondents to: (1) comply with the requirement
of environmental impact statement; (2) submit comprehensive risk assessments, field test
reports, regulatory compliance reports and other material documents on Bt talong including
issued certifications on public consultation with LGUs; (3) work with other agencies to
submit a draft amendment to biosafety regulations; and (4) BPI, in coordination with
relevant government agencies, conduct balanced nationwide public information on the
nature of Bt talong field trial, and a survey of its social acceptability.
Clearly, the provisions of DAO 08-2002 do not provide a speedy, or adequate remedy for
the respondents "to determine the questions of unique national and local importance raised
here that pertain to laws and rules for environmental protection, thus [they were] justified
in coming to this Court."50 We take judicial notice of the fact that genetically modified food
is an intensely debated global issue, and despite the entry of GMO crops (Bt corn) into the
Philippines in the last decade, it is only now that such controversy involving alleged damage
or threat to human health and the environment from GMOs has reached the courts.
Genetic Engineering
Genetic manipulation has long been practiced by conventional breeders of plant or animal to
fulfill specific purposes. The basic strategy employed is to use the sexual mechanism to
reorganize the genomes of two individuals in a new genetic matrix, and select for individuals
in the progeny with the desirable combination of the parental characteristics. Hybridization
is the conventional way of creating variation. In animals, mating is effected by introducing
the desired sperm donor to the female at the right time. In plants, pollen grains from the
desired source are deposited on the stigma of a receptive female plant. Pollination or mating
is followed by fertilization and subsequently development into an embryo. The effect of this
action is the reorganization of the genomes of two parents into a new genetic matrix to
create new individuals expressing traits from both parents. The ease of crossing of mating
varies from one species to another. However, conventional breeding technologies are limited
by their long duration, need for sexual compatibility, low selection efficiency, and restricted
gene pool.51
Recombinant DNA (rDNA) technology, often referred to as genetic engineering, allows

scientists to transfer genes from one organism to any other, circumventing the sexual
process. For example, a gene from a bacterium can be transferred to corn. Consequently,
DNA technology allowed scientists to treat all living things as belonging to one giant
breeding pool. Unlike other natural genome rearrangements phenomena, rDNA introduces
alien DNA sequences into the genome. Even though crossing of two sexually compatible
individuals produces recombinant progeny, the term recombinant DNA is restricted to the
product of the union of DNA segments of different biological origins. The product of
recombinant DNA manipulation is called a transgenic organism. rDNA is the core technology
of biotechnology.52
The organism that is created through genetic engineering is called a genetically modified
organism (GMO). Since the production of the first GMOs in the 1970s, genes have been
transferred between animal species, between plant species, and from animal species to
plant species. Some genes can make an animal or plant grow faster or larger, or both. A
gene produced by flounder (anti-freeze) was transplanted into salmon so that salmon can
be farmed in colder climates. Many species offish are genetically engineered to speed
growth, to alter flesh quality, and to increase cold and disease resistance. In farm animals
such as cattle, genes can be inserted to reduce the amount of fat in meat, to increase milk
production, and to increase superior cheese-making proteins in milk. Biotechnology has also
modified plants to produce its own pesticide, resist common diseases or to tolerate weed-
killing herbicide sprays.53
Despite these promising innovations, there has been a great deal of controversy over
bioengineered foods. Some scientists believe genetic engineering dangerously tampers with
the most fundamental natural components of life; that genetic engineering is scientifically
unsound; and that when scientists transfer genes into a new organism, the results could be
unexpected and dangerous. But no long-term studies have been done to determine what
effects GMO foods might have on human health.54
Genetically Modified Foods
The term GM food refers to crop plants created for human or animal consumption using the
latest molecular biology techniques. These plants are modified in the laboratory to enhance
desired traits such as increased resistance to herbicides or improved nutritional
content.55 Genetic modification of plants occurs in several stages:
1. An organism that has the desired characteristic is identified and the specific gene
producing this characteristic is located and the DNA is cut off.
2. The gene is then attached to a carrier in order to introduce the gene into the cells of
the plant to be modified. Mostly plasmid (piece of bacterial DNA) acts as a carrier.
3. Along with the gene and carrier a 'promoter' is also added to ensure that the gene
works adequately when it is introduced into the plant.
4. The gene of interest together with carrier and promoter is then inserted into
bacterium, and is allowed to reproduce to create many copies of the gene which are
then transferred into the plant being modified.
5. The plants are examined to ensure that they have the desired physical characteristic
conferred by the new gene.
6. The genetically modified plants are bred with conventional plants of the same variety
to produce seed for further testing and possibly for future commercial use. The entire
process from the initial gene selection to commercial production can take up to ten
years or more.56
Benefits of GM Foods
The application of biotechnology in agricultural production promises to overcome the major

constraints being faced in farming such as insect pest infestation and diseases which lead to
substantial yield losses. Pest-resistant crops could substantially improve yields in developing
countries where pest damage is rampant and reduce the use of chemical pesticides. Crop
plants which have been genetically engineered to withstand the application of powerful
herbicides57 using genes from soil bacteria eliminates the time-consuming and not cost-
effective physical removal of weeds by tilling. The herbicides to which the GM crops are
tolerant are "broad spectrum" weedkillers, which means they can be sprayed over the entire
field, killing all plants apart from the GM crop. Herbicide-tolerant crops include transgenes
providing tolerance to the herbicides (glyphosate or glufosinate ammonium). These
herbicides kill nearly all kinds of plants except those that have the tolerance gene. Another
important benefit is that this class of herbicides breaks down quickly in the soil, eliminating
residue carryover problems and reducing adverse environmental impacts. 58
Some plants are genetically engineered to withstand cold climates such as GM strawberries
or soybeans, expressing the anti-freeze gene of arctic flounder, to protect themselves
against the damaging effects of the frost; and GM tobacco and potato with anti-freeze gene
from cold water fish. Crops could also be genetically modified to produce micronutrients
vital to the human diet such as the "golden rice" genetically modified to produce beta-
carotene, which can solve Vitamin A deficiency and prevent night blindness in pre-school
children. Other efforts to enhance nutritional content of plants include the genetic
modification of canola to enhance Vitamin E content or better balance fatty acids, cereals for
specific starch or protein, rice for increased iron to reduce anemia, and plant oils to adjust
cholesterol levels. There are also food crops engineered to produce edible vaccines against
infectious diseases that would make vaccination more readily available to children around
the world. For example, transgenic bananas containing inactivated viruses protecting
against common developing world diseases such as cholera, hepatitis B and diarrhea, have
been produced. These vaccines will be much easier to ship, store and administer than
traditional injectable vaccines.59
Overall, biotechnology is perceived as having the potential to either help or hinder

reconciling of the often opposing goals of meeting the human demand for food, nutrition,
fiber, timber, and other natural resources. Biotech crops could put more food on the table
per unit of land and water used in agriculture, thus resulting in decreased land and water
diverted to human uses. Increasing crop yields and reducing the amount of cultivated land
necessary would also reduce the area subject to soil erosion from agricultural practices,
which in turn would limit associated environmental effects on water bodies and aquatic
species and would reduce loss of carbon sinks and stores into the atmosphere. 60
Adverse Health Effects of GMOs
Along with the much heralded benefits of GM crops to human health and environment, there
emerged controversial issues concerning GM foods.
In 1999, it was found that genetically engineered foods can have negative health effects.
Based on scientific studies, these foods can unleash new pathogens, contain allergens and
toxins, and increase the risk of cancer, herbicide exposure, and harm to fetuses and
infants.61 Independent studies conducted went as far to conclude that GM food and feed are
"inherently hazardous to health."62
A widely reported case is that of the Brazil nut gene expressed in soybean in order to
increase the methionine content for animal feed. The protein was subsequently shown to be
an allergen and the product was never marketed. Genetically modified foods can introduce
novel proteins into the food supply from organisms that are never consumed as foods,
which may pose a health risk. This may elicit potentially harmful immunological responses,
including allergic hypersensitivity.63
A feeding experiment conducted by Dr. Arpad Pusztai also demonstrated that potatoes
genetically altered to produce lectins, natural insecticides, to protect them against aphids,
damaged the animals' gut, other organs, and immune system. Dr. Pusztai found that "the
damage originated not from the transgene and its expressed product but from the damage
caused by the insertion of the transgene, probably due to insertional mutagenesis." 64 If
confirmed, Pusztai's conclusions will reinforce concerns that gene insertion itself may create
new toxins; it will also implicate the toxin commonly used in other genetically engineered
crops - the Bt toxin which, Pusztai says, is also a lectin.65
The use of antibiotic resistance marker (arm) gene, inserted into a plant or microbe, that
helps determine if the foreign gene has successfully spliced into the host organism, is
another cause of grave concern among scientists. These arm genes might unexpectedly
recombine with disease-causing bacteria or microbes in the environment or in the guts of
animals or humans who eat GM food, thus contributing to the growing public health danger
of antibiotic-resistance of infections that cannot be cured with traditional antibiotics (e.g.,
new strains of salmonella, e-coli, campylobacter and enterococci).66However, recent
advances in genetic engineering indicate that use of such selection markers is likely to
diminish with the anticipated development of alternative types of marker genes. 67
Increased cancer risk is another critical issue in the consumption of GM foods. A growth
hormone genetically modified to stimulate milk production in cows was found to elevate
levels of IGF-1 (insulin-like Growth Factor-1, identical versions of which occurs in cows and
humans) in cow's milk by 80%. IGF-1 is reported to be a key factor in prostate cancer,
breast cancer and lung cancer.68 Dr. Samuel Epstein of the University of Illinois warned of
the danger of high levels of IGF-1 contained in milk cows injected with synthetic bovine
growth hormone (rBGH), which could be a potential risk factor for breast and
gastrointestinal cancers.69
Glyphosate, the active ingredient in Monsanto's Roundup herbicide, has been found to
worsen modern diseases. A report published in the journalEntropy argues that glyphosate
residues, found in most commonly consumed foods in the Western diet courtesy of
genetically engineered sugar, corn, soy and wheat, "enhance the damaging effects of other
food-borne chemical residues and toxins in the environment to disrupt normal body
functions and induce disease." Another research demonstrated a connection between
increased use of Roundup with rising autism rates in the US.70
Adverse Effects of GMOs to the Environment
Genetically modified crops affect the environment in many ways such as contaminating non-
GMO plants, creating super weeds and super pests, harming non-target species, changing
soil microbial and biochemical properties, and threatening biodiversity.
There are two primary types of technology so far deployed: insect resistance (Bt) and
herbicide tolerance (HT). Both have drastic modes of action to kill the target species at high
efficiency. Bt crops contain a toxin lethal to certain insects, and Bt sprays have been used
by organic farmers as a last option to deal with certain pests like the corn borer. It is feared
that genetically modified Bt crops will speed up resistance to Bt, thereby rendering the
organic spray ineffective.71 Lab and field tests also indicate that common plant pests such as
cotton bollworms, living under constant pressure from GE crops, will soon evolve into
"superpests" completely immune to Bt sprays and other environmentally sustainable
biopesticides.72 In the case of HT, the technology involves the combined use of a chemical
herbicide and a GM plant. The herbicide is generally a broad spectrum herbicide (commonly
glyphosate or glufosinate) which kills weeds while leaving the crop plant alive as it is
genetically engineered to be resistant to the herbicide. The herbicide acts to inhibit an
essential enzyme that is found in all plants and as a result is able to eliminate all weeds
whereas most conventional herbicides are selective in their action and target a limited
number of weeds. Concern has been raised regarding over-reliance on use of one or two
herbicides in increased amounts over time which leads to the emergence of herbicide
resistant weeds. Also, the transfer of an herbicide-resistance gene into a weed can convert
it into a superweed. Pests and weeds will emerge that are pesticide or herbicide resistant,
which means that stronger, more toxic chemicals will be needed to get rid of the pests.73
It is a well-accepted fact that genetically engineered plants can move beyond the field sites
and cross with wild relatives.74 It is by nature a design of plants to cross pollinate to spread
genes further afield. Maize, oil seed rape, sugar beet, barley, among others, are wind and
insect pollinated, allowing pollen to travel large distances. In GM crop fields, pollen drift and
insect pollination create obvious problems for nearby non-GM or organic crops.75 GM maize
could cross-pollinate neighboring non-GM or organic maize crops. Maize pollen can travel at
least 500-700 meters and still be viable and distances of several kilometers have even been
reported.76 But many experiments showed varying results and actual cross-pollinations were
observed in Mexico up to 200 meters only, while in Oklahoma it was 500 meters. In crop
species that are outcrossers, many environmental factors influence the maximum pollination
distance such as the size of pollen grains, the humidity in the air, and the wind
speed.77Brinjal is usually self-pollinated, but the extent of cross-pollination has been
reported as high as 48% and hence it is classified as cross-pollinated crop. The cone-like
formation of anthers favors self-pollination; but since the stigma ultimately projects beyond
the anthers, there is an ample opportunity for cross-pollination. The rates of natural cross-
pollination may vary depending on genotype, location, and insect activity. The extent of
outcrossing has been reported from 3 to 7% in China and from 0 to 8.2% (with a mean of
2.7%) at Asian Vegetable Research Development Centre; however the Indian researchers
have reported 2 to 48% outcrossing in brinjal varieties in India. Outcrossing primarily takes
place with the help of insects.78
The StarLink incident is also a widely reported GM fiasco. In June 2000, Starlink, a
genetically modified yellow corn which contains the pesticide Bt in every cell, was found in
white corn tortilla chips in Florida, USA. Starlink had been approved for animal feed but not
for human consumption due to concerns about dangerous allergic reactions. The Starlink
incident is often cited to illustrate how difficult it is to keep genetically modified crops from
spreading.79
This gene flow to wild species is particularly alarming to environmentalists. The wild species
from which our agricultural plants originate are an important genetic resource for further
plant breeding if, for example, there is a requirement for improved resistance to climate
change or plant pests. Future plant breeding could be jeopardized if transgenes spread into
these resources. Similarly, agriculture in the centers of origin could be permanently
damaged if transgenes spread into regional landraces. 80 Invasive species can replace a
single species or a whole range of species, and they can also change the conditions within
ecological systems. Crossing can cause losses in the genetic information of the original
species, a reduction in genetic diversity and an ongoing incremental change of genetic
identity in the original plants. It is hard to predict which species will become
invasive.81 Indeed, GM crops could threaten the centers of crop biodiversity or outgrow a
local flora to the detriment of native species.82
Bt gene in genetically modified crops might be toxic to non-target organisms that consume
it. When Bt corn sheds its pollen, these are cast into the wind, dusting nearby plants and
trees. Concern has been expressed about the potential toxicity of the Bt toxin in corn pollen
to the monarch butterfly because initial laboratory studies showed increased mortality in
larvae. However, in another study it was believed that it is unlikely that a significant risk to
those butterflies exists.83
On the effect of transgene crops on soil, one study investigated CrylAcc and CpTI proteins
and their effects on microbial properties and enzyme activities. Results showed that there
was persistence of said proteins in soil under 4-year consecutive cultivation of transgenic
cottons. Soil microbial biomass carbon, microbial activities, and soil enzyme activities
(except urease and phosphodiesterase) significantly decreased in soil under transgenic
cottons.84
In another review, it was stated that the direct effects of the plant that has been modified is
of the most concern since the introduction of transgenic proteins for pest and disease
resistance can involve the production of chemical substances that are potentially toxic to
non-target soil organisms, including mycorrhizal fungi and soil microfauna that are involved
in organic matter decomposition. Experimental studies have shown that the transgenic
proteins Bt crystal toxin and T4 lysozyme, though used to prevent insect damage to the
above ground plant parts, are not only present in root exudates but that they maintain
biological activity after entering the soil.85
As to the herbicide glyphosate, recent studies revealed its negative effects on the soil, which
include compaction and resultant runoff, the killing of beneficial microbes and bacteria, and
the exhaustion of necessary minerals and nutrients that plants require. It was found that
glyphosate "locks up" manganese and other minerals in the soil so that they can't be
utilized by the plants that need them, and that it is toxic to rhizobia, the bacterium that
fixes nitrogen in the soil. There is likewise evidence showing that glyphosates can make
their way to groundwater supplies.86 In a study which tested the effects of the herbicide
Roundup on six species of larval amphibians from North America, it was demonstrated that
when we "use realistic exposure times and the frequently occurring stress of predators
found in natural ecologic communities, one of our most widely applied herbicides (Roundup)
has the potential to kill many species of amphibians." At the same time, the study noted
that Monsanto Corporation has recently released "an additional formulation of glyphosate
(Roundup Biactive), which contains a different (but unspecified) surfactant that is reported
to be less toxic."87
Evidence of Damage or Threat of Damage to Human Health and the Environment
Both petitioners and respondents submitted documentary evidence consisting of reports of

scientific studies and articles in support of their respective positions on the benefits and
risks of GM plants.
Further, the parties presented their respective expert witnesses who testified on the
allegations raised in the petition concerning damage or threat of damage to human health
and the environment resulting from the conduct of Bt talong field trials in the Philippines.
The CA conducted "hot tubbing," the colloquial term for concurrent expert evidence, a
method used for giving evidence in civil cases in Australia. In a "hot tub" hearing, the judge
can hear all the experts discussing the same issue at the same time to explain each of their
points in a discussion with a professional colleague. The objective is to achieve greater
efficiency and expedition, by reduced emphasis on cross-examination and increased
emphasis on professional dialogue, and swifter identification of the critical areas of
disagreement between the experts.88
On November 20, 2012, the parties' expert witnesses testified in a hot tub hearing before
the chairman and members of the CA's Special Thirteenth Division. Dr. Chakraborty, Dr.
Medina and Dr. Malayang were presented by the petitioners while Dr. Davies, Dr. Halos, Dr.
Ebora and Dr. Cario appeared for the respondents.
The following are summaries of the expert witnesses' judicial affidavits:

For Petitioners
DR. DAVIES, Professor of Plant Physiology at Cornell University, Jefferson Science Fellow
serving as senior science advisor on agricultural biotechnology in the US Department of
State, and editor for plant physiology for McGraw-Hill Encyclopedia of Science and
Technology.
In his review of agricultural biotechnology around the world, he has not encountered any
verifiable report of a field trial of any GM crop that caused damage to the environment and
to human health. This involves more than 25,000 field trials in 20 years with crops such
as Bteggplant, Bt cotton, Bt corn, and others. The same applies to the commercial
cultivation of Bt crops, which have been grown in ever increasing quantities worldwide for
16 years and now comprise the majority of the world acreage of maize and cotton.
A recent European Union (EU) report which concludes that more than 130 EU research
projects covering a period of more than 25 years of research involving more than 500
independent research groups, show that consuming foods containing ingredients derived
from GM crops is no riskier than consuming the same foods containing ingredients from
conventional crops. The World Health Organization (WHO), American Medical Association,
US National Academy of Sciences, European Food Safety Authority (EFSA) all have come to
the same conclusion.
GMOs have been proven safe as conventionally-bred crops in animal studies. A small
number of poorly done studies purportedly claiming negative effects, should be viewed with
great caution and have been highly criticized for their veracity by the overwhelming
majority of highly respected scientists. Many hundreds of studies show no harmful effects.
To date, not a single rigorous study of GM foods in animals has revealed any adverse effect;
not a single case of allergy, illness, cancer, or death have been shown to be associated with
foods derived from GM crops, despite the fact that they have been consumed by Americans
for 16 years.
Recent studies indicate that Bt crops enhance the ecological diversity in the areas
surrounding those where Bt crops are grown. Over a period of 13 years, cultivation
of Bt cotton in China results in an increase in insect diversity and abundance and a decrease
in crop damaging insects not only in Bt crop fields but also in surrounding non-Bt fields.
GM crops deliver significant yield increases, result in less exposure to pesticides, improve
food security worldwide, protect against devastating crop losses and famine, improve
nutrition, and some GM crop techniques help combat climate change.89
DR. HALOS, Ph.D. in Genetics, University of California Berkeley, B.S. Agriculture, Major in
Agronomy (Plant Breeding), UPLB, and served as Instructor, Associate Professor, Chief
Science Research Specialist, Research Director at UPLB, UP Diliman, De La Salle University,
Forest Research Institute now Ecosystems Research and Development Bureau of DENR and
the Biotechnology Coalition of the Philippines.
From her research, she gathered that the protein product of the Bt gene CrylAcc in Bt cotton
that is also in Bt eggplant has been found safe by many food and environmental safety
regulatory agencies such as those in Australia, New Zealand, USA, Canada, Brazil, China,
India, Mexico, Argentina, South Africa, Japan and EU.
Since 2002, BPI has granted 95 biosafety permits for field trials. Of these 70 field trial
permits were for Bt corn, cotton and eggplant. No adverse effect of any of these Bt crop
field trials have been reported. No report of adverse effects of Bt crop field trial exists. All
claims of adverse health and environmental effects of Bt crops has not been scientifically
validated. The yearly expansion of GM crop areas in both the developing and industrialized
countries is an attestation of the preference of farmers and the economic benefits that
accrue to them.
GM crops have positive environmental impact. Currently commercialized GM crops have

reduced the adverse impacts of agriculture on biodiversity. The use of Bt crops has
significantly reduced the use of pesticides, and also increased farmer incomes.90
DR. EBORA, Ph.D. in Entomology, Michigan State University; B.S. Agriculture and M.S.
Entomology (Insect Pathology/Microbial Control), UPLB; Post-graduate trainings in
microbiology and biotechnology, Osaka University, Japan, and Intellectual Property
Management and Technology Transfer, ISAAA AmeriCenter, Cornell University, USA.
Director, and Research Associate Professor, National Institute of Molecular Biology and
Biotechnology (BIOTECH), UPLB; Philippine Coordinator of the Program for Biosafety
Systems; former Executive Director, Philippine Council for Industry, Energy and Emerging
Technology Research and Development, DOST; former Chair, Biosafety Committee, DOST;
and was a Member of the Institutional Biosafety Committees of UPLB and International Rice
Research Institute (IRRI); and was extensively involved in the isolation, bioassay or efficacy
testing and development of Bt as microbial insecticides for the control of Asian corn borer
and mosquito larvae at BIOTECH.
The contained field trial experiments, among others, were designed to address concerns on
cross-pollination or horizontal gene transfer, pollination distances, harm to beneficial
organisms, and development of insect resistance. To prevent cross-pollination, an isolation
distance of 200 meters from other areas where eggplants are grown or wild relatives are
present, was observed, and with five (5) rows of non-transgenic eggplants that serve as
pollen trap plants. As to the flight distance of honeybees reaching 4 kilometers, what was
not mentioned is the viability of pollen after it was shed and travelled at a certain distance.
Numerous literatures have shown that isolation distances much less than 200 meters is
sufficient to prevent cross-pollination. Two studies are cited: Sekara and Bieniasz (2008)
noted that cross-pollination at a distance of 50 meters was nonexistent; and the Asian
Vegetable Research and Development Center (AVRDC) indicated that eggplants produce
perfect flowers which may be cross-pollinated but self-pollination is more common, the
extent of natural crossing depends upon insect activity and this can be avoided by isolating
each variety by 20 meters or with another tall flowering plant. The isolation distance
imposed by DA-BPI is 1 Ox the recommended isolation distance; the 200 meters distance
was found sufficient for pure seed production in India (the same recommendation by Chen
[2001] of AVRDC foundation for seed production purity standards); field studies in 2
locations in India have shown that at a distance beyond 30 meters no more outcrossing
could be detected. Taking all these data into account, the 48% outcrossing being raised by
petitioners is most likely for adjacent plants and therefore not a valid argument for the on-
going field trials.
The Bt talong will not directly affect beneficial organisms like pollinators, predators and
parasites of insect pests because it is toxic only to caterpillars or insects belonging to Order
Lepidoptera (butterfly and moths). The selective toxicity of Bt protein in Bt talong is partly
due to the fact that the gut physiology of these insects is very different from caterpillars,
and not all caterpillars are affected by it. There is a significant number of literature
on Bt protein's selectivity and specificity.
As to the development of insect resistance, this is not possible during the multi-location field
trials for Bt talong because of low selection pressure and limited exposure of the insect pest
to Bt talong. Insect resistance is not unique to GM crops as it is a commonly observed
biological reaction of insect pests to control measures like insecticides. In the event Bt
talong is approved for commercialization and will be widely used by fanners, this concern
could be addressed by insect resistance management (IRM); an IRM strategy should be
required prior to the commercial release of Bt talong.
There is no compelling reason to stop the field trials; on the contrary they should be allowed
to proceed so that scientists and researchers will be able to generate valuable data and
information which will be helpful in making informed decisions regarding the usefulness of
the technology.91
For Respondents
DR. MALAYANG III, Ph.D. in Wildland Resource Science, University of California at

Berkeley; M.A. Philosophy, M.A. International Affairs (Southeast Asia Studies major in
Economics), Ohio University; AB Philosophy, UP Diliman; former Undersecretary of
Environment and Natural Resources; served as Environmental Science representative in the
National Biosafety Committee of the Philippines and participated in the drafting of the
Philippines Biosafety Framework; and student, lecturer and advocate of biodiversity, food
security, biosafety and environmental policy.
He is concerned with how GMOs are being introduced for commercial-scale use (as against
being used for academic research) in the Philippines on the following grounds: (a) how they
might contaminate the indigenous genetic resources of the country; (b) how they may
cause an imbalance of predator-prey relationships in ecosystems, so that certain species
might dominate ecological niches and erode their biodiversity and ecological stability; (c)
how they may erode the ability of farmers to control their genetic resources to sustain their
cropping systems; and (d) how much are present biosafety protocols able to safeguard the
long-term ecological and economic interests of the Philippines as a particularly biodiversity-
rich country and which is, therefore, highly sensitive to genetic pollution; to the extent that
its biodiversity is its long-term equity to advances in biotechnology, the most robust
measures must be taken so that such resources will not be lost.
Being a highly biodiversity-rich country, biosafety measures in the Philippines must be

adopted using a 3-stage approach: Stage 1 - Develop criteria for biosafety measures;
meaning, first, adopt a set of standards for determining the level of robustness of biosafety
measures and protocols that would be acceptable in the particular case of the Philippines;
include required scoping and internal and external validity requirements of impact and
safety assessments; Stage 2 - Using the criteria produced in Stage 1, develop biosafety
measures and protocols to be adopted in the Philippines; and Stage 3 - Apply the protocol
with the highest rigor.
Biosafety must be a public affair involving a broad spectrum of the Filipino state rather than
its considerations being restricted only to specific professionals and sectors in the country;
biosafety must be based on an enactment of Congress and open to challenge and
adjudication against international laws; provisions must be made to make it a crime against
humanity to recklessly erode and weaken genetic resources of our people. 92
DR. MEDINA, Ph.D. in Environmental Biology, University of Guelph, Canada; M.S. (Insect
and Plant Ecology) and B.S. Agriculture, UPLB; National Coordinator of MASIPAG; served as
resource person in more than a hundred trainings and seminars, both local and abroad;
served as member in international agricultural assessment sponsored by Food and
Agriculture Organization (FAO), United Nations Environment Program (UNEP), WHO, and the
World Bank; worked on a project for development of resistance to corn borer in 1981 at the
Institute of Plant Breeding in UPLB, and served as researcher and later Associate Professor
of Environmental Management of the UP Open University.
Based on her studies and extensive experience, the Bt talong field testing poses the
following risks or hazards: (a) While natural Bt sprays used in organic farming have little
effect on non-target organisms because the bacterial 'pro-toxin' is in an inactive state and
only becomes toxic when processed and reduced in the gut of certain (targeted) species of
insect larvae, in contrast, Bt plants contain an artificial, truncated Bt gene and less
processing is required to generate the toxin because the toxin is already in its active form.
It is therefore less selective, and may harm non-target insects that do not have the
enzymes to process the pro-toxin, as well as the pests for which it is intended;
(b) Bt proteins from natural Bt sprays degrade relatively quickly in the field as a result of
ultraviolet light and lose most toxic activity within several days to two weeks after
application. In Bt crops, however, the Bt toxin is produced by the internal system of the
plants thus non-degradable by mere exposure to sunlight and generated throughout the
entire lifespan of the plant; (c) Bt talong can also affect the environment by harming
important or beneficial insects directly or indirectly. Genetically engineered Bt eggplant, like
other Btcrops, could be harmful to non-target organisms if they consume the toxin directly
in pollen or plant debris. This could cause harm to ecosystems by reducing the numbers of
important species, or reducing the numbers of beneficial organisms that would naturally
help control the pest species; (c) The evolution of resistance to Bt crops is a real risk and is
treated as such in ecological science throughout the world. If enough individuals become
resistant then the pest control fails; the pest becomes abundant and affects crop yield.
Granting the pest control practice is successful, it may also simply swap one pest for
another, a phenomenon known as secondary pest outbreak. Several studies have shown
that other pest insects are filling the void left by the absence of the one (or very few) insect
pests that Btcrops target, and this is now the problem with Bt maize.
Eggplant is 48% insect pollinated thereby any field release or field testing of genetically
modified Bt talong will eventually lead to contamination of non-genetically modified
eggplant varieties. Insects, particularly honeybees, can fly as far as 4 kilometers and
therefore the 200 meters perimeter pollen trap area in the confined field testing set by BPI
is not sufficient. And once contamination occurs, genetic cleanup of eggplant or any other
plant is impossible. Moreover, intra-specific gene flow from Bt talong to other varieties and
populations of eggplants should be examined, as cultivated eggplant (Solanum melongena)
can cross breed with feral populations of S. melongena, and it is possible that cultivated
varieties can revert to wild phenotypes. Additionally, there is likely to be natural crossing
between Bt talong and wild relatives. Hybridization with perhaps as many as 29 wild relative
species needs to be evaluated carefully and the consequences of any hybridization that
occurs needs to be evaluated.
In 2010, the Minister of Environment and Forests of the Government of India, in his decision
for moratorium of Bt Brinjal, listed potential contamination of eggplant varieties as one of
the reasons why the release of Bt Brinjal was not allowed. Dr. Andow of the University of
Minnesota also published an 84-pages report on the Environmental Risk Assessment of Bt
Brinjal, and among his conclusions is that several environmental risks were not considered
and nearly all the risk assessment done were inadequate. He concluded that until the risks
were understood or managed, there seems to be little reason to approve Bt
Brinjal release.93
DR. CHAKRABORTY, Ph.D., M.S. Biochemistry, B.S. (Honors in Chemistry), Calcutta

University; Molecular Biologist, presently Principal Scientist and Head of the Gene
Regulation Laboratory in the Council of Scientific and Industrial Research - Indian Institute
of Chemical Biology (CSIR-IICB); Member, Governing Body and Executive Committee of the
state council of Biotechnology, Government of West Bengal and Chairman of the
Biotechnology group of the state council of Science and Technology, Government of West
Bengal; Visiting Professor of the National Institute of Science, Technology and Development
(CSIR-NISTAD); citizen of India and resident of Kolkata, India.
GMO is a classic example of "paradoxes of consequences", where human actions have

unintended consequences, which are in direct opposition to what was intended. The
difference in controlled laboratory condition and standards, and real life open field level
micro and macro-environment pushes the advantage towards the target and non-target
living system, with time. The pest resistance to Bt toxin and development of herbicide
tolerance (HT) in weeds is just a matter of time. The decade long experience in Bt and Ht
genes amply proves this point. If we ignore this now - we are manufacturing a global
environmental disaster - which will be a crime against humanity. There is no way to recall
these GMO from the environment.
Even the short term benefits of GM agriculture are not scale neutral, or location-
independent. It will help the monopoly agribusiness and the expenses of monopolistic
competition or cooperative organic farming. Hot climate and rich biodiversity is detrimental
towards the effectiveness of Bt constructs, and helpful towards unintended gene flow.
Moreover, the genetic manipulation is no way fail safe or exact. Shotgun techniques are
being adapted, aided by focused laboratory based screen of traits - rather than the host or
the full natural product. The GM labeling is avoided to cover up this major fault.
The tendency to avoid the available risk assessment, and test is very clear in the GM
agribusiness. Before going ahead with spread of this technology, even in a batter form, the
foremost task is to establish rigorous test and assessment procedures. There are excellent
available tools of preteomics, transcriptomics, and metabolomics for detailed compositional
analysis in our hand to do this. Please ask, why they are not being employed? In fact, there
is not a single centre to test GM products on behalf of the corporate GM Agribusiness house.
Thus, low level, long term toxicity of GM foods are yet to be tested. I believe the time has
come to establish a standardization facility to carry out such test facility in any country
before giving permission to GM trial or cultivation.94ChanRoblesVirtualawlibrary
The relevant portions of the "hot-tub" hearing held on November 20, 2012, are herein
reproduced:
Dr. Cario:chanRoblesvirtualLawlibrary
x x x This is to clarify something with the BT Talong and the BT Talong has its substance. It
is not supposed to be consumed at the moment still under field trial, so it is not supposed to
be eaten at the moment. It has not been released for food nor for feed and so in the context
of a confined field test, it has supposed to have it out in the field in a very controlled
manner and any produce that comes out from that area is supposed to be destroyed or kept
from further safety and analysis only.
Chairperson:chanRoblesvirtualLawlibrary
So, actually, there is no full scientific certainty that it does not cause any harm pertaining to
health?
BT Talong per se, has hot been fully evaluated yet that is why it is undergoing trials. If
reporting of the BT toxin in BT Talong is CrylAcc, there are numerous studies that had been
actually published on relative safety of CrylAcc protein and it is actually considered as an
additional protein and the various reviews can be seen in the OECD Digest of risk
assessments on CrylAcc protein. Alternatively, if you are looking at the possibility of harm
coming from the introduced protein as yet, we have not done a full blown assessment of it
as of the moment. But we look at the protein sequence and with a comparison of its
sequence with other sequences in the data basis to see if it is similar to this amino acid
sequence of other known toxins and, so far, I have actually ... in my affidavit, I have
actually seen personally that it is not closely related to any of the known toxins that are
found into its system.
So, in effect, we can not really say that BT Talong is perfectly safe for human consumption?
Right now it is not meant to be consumed by human at this point. Let me just clarify one
point. When any GM material is supposed to be introduced for food and for feed and before
it is actually utilized for life skill production, it goes through several steps. The first step is
actually the "lab", laboratory work and it is actually tested in this clean-houses, rolled-out
confined limited field test and then it goes tobutyl abyss of field tests where it is like
generating more and more informations. We are still early on in this pathway, so we are
only in the confined field test and, at the moment, the thing is that it is still being tested.
The focus is on its efficacy after doing a preliminary assessment of the possible pathological
and ecological effect, and that is the pathway that has been recommended by so many
academics as well as scientific institutions as well. And, that has been a tract followed by
almost all the genetically modified crops that is being introduced in the market today, but at
the moment BT Talong is not yet a commodity. It is not yet being evaluated as a
commodity.
So, no one in this country has yet eaten this BT Talong?
No, it has not been eaten, as far as I know. Even in India it has not been consumed by
human beings because it has not been introduced as a commodity.
But what is the ultimate purpose of growing BT Talong? It is not for human consumption, of
course?
If it passes the safety assessments. That there is always a peak condition that, if it would
not to be evaluated in a step of the way much like to evaluate any new product that is
coming into the market evaluation, goes on a step-by-step and at least day-to-day basis.
Dr. Davies:chanRoblesvirtualLawlibrary
Your Honor, may I interject, may I suggest with your permission? I would just like to make
a little bit of explanation.
Proceed.
I would like to address "BT" as a compound which is distinct from a plain in "Talong". First
of all, I think of the name BT toxin is very fortunate. It is really a protein. A protein is an
essential constituent of life. It is an essential constituent of our food. In the human body,
and in the body of other animals, this protein is under the same as any other protein in
food. It has no effect on the human body. This has been shown for many, many years,
knowing BT Talong but BT has been a constituent of "maize" in commercial production for
16 years.
xxxx
x x x So it has been in corn for 16 years after substantial trials. It has been consumed by
Americans in corn products and by any other people who in[g]est American maize corn
products x x x. There is not a single case of illness or toxicity or allergenicity that can be or
that has been associated with this protein and, therefore, any food containing this protein
has been declared by authorities in all the countries that was mentioned by my colleagues,
including the European Union and the United States x x x to be as safe as any food derived
from the same plant species not containing this gene. I hope that explains a little bit about
what it is.
Are you aware of a study, Dr. Davies, released on September 20 of this year, saying that
Monsanto's genetically modified corn is linked to cancer?
Yes. Are you referring, your Honor, to a publication by a French Scientist named Gilles-Eric
Seralini? I think this is one of the publications by Seralini's group. Dr. Seralini's work has
been refuted by International committees of scientists...
xxxx
Dr. Chakraborty:chanRoblesvirtualLawlibrary
Your Honor, may I butt in? It is wrong that proteins can not be toxins. Think about the
snake venoms. They are poisons, so whether it is protein or not that is not the question. So
proteins obviously venoms and proteins and enzymes and they are poisons so protein can
be a poison so that is now the point at all to be considered. The second thing is, yeah, low
level toxins long term in[g]estion of this BT toxin in human or in any other animal have not
been tested. So that is true so we do not know direct consumption of this, because notice
have been turned down, that is the objective fact. The third point is about the "American
Corn", and if I can give you such anecdotes, "American GM Corn" are not labelled, how do
you know that? What is its effect? What is its toxicity? And, obviously, there are more than
a hundred of papers showing and published in very good journals. I can give many
references which have shown the detrimental effect of BT Toxin.
xxxx
But before having this BT talong scheduled and allowed for field testing, is it not proper that
it should be first determined whether this food product is really safe for eating or not?
There is an initial assessment that is generally done and according to the Codex
Alimentarius of the WHO, the thing that you do at this early stage of development is to
compare the sequence of the protein that is being introduced with published sequence of
allergens, as well as toxicants and toxins. So that has been done. Then you have to look for
instability under heat conditions because there is seldom do we heat grow eggplants, so is it
stable under heating. Is it stable in the presence of digestive juices? And, if the answer is
"yes", there is at least fair certainty, a fair assurance that it is likely to be safe but then you
start thinking of what other component not present in the product, does this. For example,
any product that we consume today has something that is bad for you, otherwise, you will
not see it right now. Otherwise all the different herbivores will be eating it up, right? It will
be extinct if it does not have anything to protect itself and, so, the thing is one, to quantify
how much of that has changed when you lead the genetic modification. So "Talong" has
been known to have Solanine and glycoalkaloids whose level well have to quantify. We have
not done that yet. They have not submitted the data for that and this as secondary
metabolize whose relative concentration will change depending on the environment to which
you actually place the system.
x x x In india, we have a very bad experience x x x in location field trial with the BT Cotton.
You known that BT Cotton was introduced in India through the back door black market
entry. During the field trial, some of those seeds were taken out and given to the farmers
for commercial cultivation to black market. Monsanto goes well, Monsanto's BT Cotton, like
Monsanto, did not sue now apparently sue the company and they compelled the
government that farmers wanted those things and there was high ... how they pressurized
the government. Now, in case of BT cotton is one thing, but BT Eggplant is completely a
different thing. That is why [the] Supreme Court in India has taken a very strong stand and,
now, the parliamentary committee in India. The Supreme Court has also taken steps stand
with the field trial. The first thing in field trial we had to see that whether there is a definite
need of this kind of intervention, because the eggplant is a very common vegetable in this
part of the world. There are so many hundreds of varieties here, these are the origins of
these varieties of this kind of vegetable. It is cheap. It is available everyday. So why you go
on changing if there is no crisis in cultivating the eggplants at present. Therefore, when you
give it to this patented seeds technology, its prices will increase, lot of restrictions had to be
deal. So, who will consume this high price eggplant. Many will be exported, that was why
the proponents are looking into it. But, basically, that is the thing that in case of BT Brinjal,
neighbor partisan is being given. There is a moratorium in India from the Supreme Court
and from the government side on field trial of BT Brinjal. Now, if x x x the BT Eggplant is
being taken to the Philippines, we guess, to get in as a bypass, and who will guarantee that
it will not go to the farmers?
xxxx
Justice Antonio-Valenzuela:chanRoblesvirtualLawlibrary
And, I was wondering in the conduct of the tests, the field testing x x x what would be the
effect of the planting .... of the existence of the genetically modified organism, for example,
on insects, on the soil, on the air? And then I was thinking, does this have this particular
protein that result[s] due to the genetic modification? Is it ... how is it expelled, for example
how does it go into the environment? Or, on the other hand, how does it go inside and out
of human system so that does it disintegrate or is it just there forever? I am very curious,
sir. You have to educate me.
x x x Okay, the DNA is in every cell of the eggplant and, so, a very small amount to protein
produced by each cell will be this BT protein. It does not get into the environment in
general. A very small amount might be in the pollen or in the leaves that fall to the ground
but it has been shown to be broken down in the soil by organisms so it will not exist in the
environment. The only way that it is going to get into animals or insects is if they eat the
fruit and this is what an insect that the "talong" fruit and shoot borer will be trying to. But, if
it eats it, it reacts with its intestine so that they become toxic to the caterpillar but this is
very specific to the digestive system of the caterpillar. It does not affect bees. It does not
affect animals. It does not affect humans.
xxxx
At the scientific level, it gets changed by alkalinity of the insect gut and reacts with specific
receptors of the cells of the walls of the insect gut. But, this is very specific to the gut of
these insects namely the "Lepidoptera" and some "coleoptera" which are the butterflies and
the beetles but it will only affect if they try to eat the plant. Now, you are asking us if what
is the effect on the environment. x x x I would like to cite x x x a recent paper published in
the journal "Nature" x x x the most prestigious scientific journal in the world, x x x
published in "Nature" in June this year and this is the result of a study of "insects"
in BT Cotton fields in China in 17 locations for 14 years of a long period study. And these
scientists revolt that they show a marked increase in the abundance of three types of
generalist arthropod predators (ladywings, lacewings and spiders) and a decrease in
abundance of aphid pests associated with widespread adoption of Btcotton. And they are
referring to China and they conclude that such crops, x x x BT crops, can promote beneficial
control services in agricultural landscapes. And, it also showed that these effects extend
beyond the field. So, essentially x x x they found that there were more insects than in
conventionally grown cotton and the insect diversity was greater surrounded than being
detrimental to an agriculture ecosystem such BT cotton falls beneficial.
May I interject, your Honor. Now he is citing one paper they are. But in "Nature," there was
another news article, "Battlefield". One stream ecologist in United States itself, in a
university, she has studied the effect of growing BT Corn in the field and what is the effect
on the stream ecology, the west water, what is happening to other insects, insects in which
it is getting that BT toxin will not go. Yes, she has found that stream ecology...
xxxx
Why was it published in "Nature" when that stream ecologist from Loyola University Chicago
in Illinois published that paper, published that article in PNAS or Proceedings of the National
Academy of Sciences, a prestigious journal? Now, they have to desert her. She was abused,
so her file was taken out. So people started e-mailing, threatening her. So "Nature" has to
publish that. How dirty the field has become so they entitled it "Battelfield." If anybody
produces any evidence that BT Toxin or GM Technology is doing any harm to the
environment then it will be battered by the entire English lobby so there is worst the
situation. But National Academy of Sciences in United States has taken a strong decision
and, in last year, there were six publications that published where strong evidences are
being produced about the environmental and ecological damage cause[d] by this
technology. So, that is the case.
Can I respond to that, your Honors?
Dr. Malayang:chanRoblesvirtualLawlibrary
I think Filipinos should be able to talk also here.
Can we give a chance to Dr. Malayang?
x x x My concern is on the process and participants in vetting the safety of GM crops, not
necessarily the intricacies of the science involved in genetic modification per se which, I
think our international friends, would like to focus on. x x x
One, I am concerned with the fallibility of technology, x x x even if it is much founded on or

produced from the most robust sciences, a technology could fail to be as useful as it was
intended or its use lead to an [unintended harm to humans and the environment. This is so
because science, by nature, as many scientists will agree, is very probabilistic rather than
absolutist. Many cases of common knowledge illustrate this point. May I just refer, for the
Court's notice for, First, the Nuclear Power Plants in Japan x x x. The best science and the
best technology did not necessarily translate to absolute safety.
Second example, the Union Carbide Plant in Bhopal, India. It was among the most advanced
production ton at its time, yet, we know what happened. x x x Union Carbide's [hurry] to
set up a plant to take advantage of a large pesticide market in India to help the country's
farmers led to a massive and deadly safety failure.
The Third example is the green revolution, x x x involves, however, the wide [use] of
synthetic chemicals for fertilizer and pesticides that were [at] the time hailed as wonder
technologies. Many scientists in the world at that time argued for their wider use but they
later turned out to harm people, soils and water. They prove good then bad, so bad that
scientists today are using their ill effects as justification for adopting alternative
technologies to get us out of the synthetic chemical regime in agriculture.
And finally, the most common example would be the unintended effects of medicine. x x x
Medicines are technologies intended to do good but, with even the best science and the
vetting processes using rigid safety and risk assessment methods, they still could cause side
effects entirely undesired and many of which can cause chronic or acute threats to human
life. This includes the use of "DDT" that was used to control lice among soldiers after the II
World War which, after all, proved to be very bad.
x x x I am also concerned with the fragility, fragility of the Philippine environment as the
place and context, the particular place and context of the introduction of BT crops like BT
talong. x x x the Philippines is among the world's biologically rich countries. x x x So, many
of our insects are not even fully known. We do not know how they all behave to influence
the transfer of genetic materials from plants to other plants. We do not fully know what we
do not know about the intricate interactions between plants and between insects and other
living things that define the universe of our healthful and balanced ecology. The universe of
our healthful and balanced ecology certainly go beyond specific crops. I am concerned that,
absent a full as against partial understanding of the intricate web of genetic flows and
interactions among plants, animals and other living things in our wet and tropical
ecosystems, it will require extraordinary care to tamper with any one element of this swirl
of interrelationships. This is notwithstanding the seeming preponderance of evidence of
safety in other countries and environment that are certainly not the same as ours. x x x we
must be extra careful because the effects might be irreversible. Introducing a genetically
modified plant x x x could cause a string of changes across many plants that, like the green
revolution or in the case of medicine and the two other cases cited above, could turn out
and only to be realized much later to be harmful to humans and the environment more than
they were intended to be useful. x x x let us ensure that we adopt in the country a biosafety
vetting protocol that is: (1) sensitive to our high biodiversity this is a particular condition in
the Philippines; and (2) tested for error levels that are acceptable to or which can be
tolerated by our people. My affidavit states a three-stage approach to this. x x x the tests
that we will be doing is a test process acceptable to all as well rather than merely concocted
or designed by just a few people x x x must be a product of wider citizens' participation and
reflect both scientific and traditional knowledge and cultural sensitivity of our people. It is in
the NBF after all, x x x introducing BT Talong in the Philippines must be decided on the
grounds of both science and public policy and public policy, in this case, must involve full
public disclosure and participation in accepting both the potential gains and possible pains
of BT Talong. The stakes, both positive and negative, are so high that I believe BT
Talong would require more public scrutiny and wider democratic decision making beyond
the [realm] of science. x x x for the sake of our country and our rich biodiversity x x x
prudence requires that maximum efforts be exerted to ensure its safety beyond the
parameters of science and into the sphere of public policy. For to fail in doing so what might
be highly anticipated to be beneficial may in some twist of failure or precaution and
prudence and failure for due diligence to establish the safety of Bt Talong beyond
reasonable doubt, the BT Talong may turn out to be harmful after all. This we certainly do
not want to do. I submit these views to the Court.
xxxx
x x x another thing I would like to point out to the Court is, if you come into a market in the
Philippines and you see nice Talong, it has probably been treated with various insecticides.
So, there has been insecticide spray on your tips in your crops which are going to be harm
on your farmers, your farmer's children, the insect populations and also dangerous to the
consumers as well. By contrast, Bt Talong, if it is adopted, the BT has been shown to be
beneficial to the insects and the environment and also has been shown not to be toxic in
food. Therefore, we are changing a highly toxic chemical application for a much more
benign modern technique that is beneficial to the environment and beneficial to the
consumers. That is my comment with the views just made by my Filipino colleagues, your
Honors.
x x x You know, in ecology and, I am sure you are aware of this, an expansion of anyone
population or a reduction of that population it would still be both not beneficial to the
healthful and balanced ecological health of the ecosystem. So to say that because the
population of insects are exploded and the diversity of insects exploded as a result of this
particular intervention is not necessarily good. That is my first point. The second one, you
mentioned x x x the "talong" is laden with pesticide. The same pesticide were advised by
scientists from the USAID before for us to use in this country because this is how to expand
our production of food. This was part of the green revolution, the systemic use of pesticides
and fertilizer. Now, of course, they were misused, I can guarantee that but, again, if that be
the case, in the case of pesticide why can it not be in the case of BT that it can also be
misused? x x x we are talking here not of the science or of the technology but on the policy
aspect of the adoption of the technology. As I said, I am talking about the bakery not of a
baked-bread.
Dr. Saturnina Halos:chanRoblesvirtualLawlibrary
Well, the use of pesticide in the eggplant, right now, is very much abused. x x x In terms of
the use of Bt Talong, then, that kind of misuse is not going to happen x x x. Now, in the
Philippines, we have a very strict highly monitored field testing and I think Dr. Malayang
knows about that because he was one of those who prepared the guidelines for the field
testing. So that is not going to happen, it is a very strict regulatory system. We are known
for that, actually, and...
xxxx
Dr. Saturnina Halos:chanRoblesvirtualLawlibrary
No, no. It does not happen because we have a risk management plan x x x.
xxxx
Dr. Halos:chanRoblesvirtualLawlibrary
x x x As far as do we know what is happening after we have given approval, yes, we are
monitoring. We are monitoring as far as BT cornis concerned. We are monitoring,
continuously monitoring, not only for the beneficial insects but also the effects that is
continuing, we are also continuing to monitor the weeds, weed population. In weed we
decide to spray...
And why is this, ma'am, why are we monitoring? Because they could be harmful?
No we have to know what is happening.
Yes, why? Because if you are sure that they are safe, if you are sure that they are safe, why
monitor?
Well, we are going to give you the data for that because you keep on asking, you know, you
asked for a long term and we are going to give you that complete data.
xxxx
Dr. Medina:chanRoblesvirtualLawlibrary
I would like to raise several issues because I feel they are misleading sometimes. Dr. Davies
mentioned that the BT protein is a protein, therefore, it is safe. Are you sure that all
proteins are safe, Dr. Davies? Are you aware of anti-nutrients and allergens and other kinds
of protein x x x it is a misleading generalization. Secondly, I would like to say also that,
when you say that BT crops is beneficial to insect population but, how about humans? But,
let me tell and inform the Honorable Justices also that, in agriculture, there can be, the
pests are there to reduce the yield. There are also diseases so, that this Bt is only
controlling one kind of pest and, in my monitoring of BT corn as an example to this 2 years
after the commercialization in 2003, at first planting in 2003, the corn is attacked by about
a dozen insect pests and six major diseases. The Bt corn was attacked a "stem rot", a
fungal disease. And, in this case in eggplant, there are many fungal diseases, "phomopsis" x
x x So in that case it is not field safe that you will not be using pesticide anymore
with BT eggplant. When you use the BT eggplant, assuming that there is no more insect
pests x x x There are many other methods of control and, therefore, do not assume that
you do not use pesticide therefore, BT is the only solution. That is also a risky and wrong
generalization or statement, x x x Dr. Halos x x x says that field tests are safe. I intend to
disagree with that. Safe to what? Especially to contamination. If I may use this picture of
the field testing of the Bt eggplant x x x it was encircled with cyclone wire with a diameter
of something like approximately 10 cm. by 7 cm. hole. While bees that can pollinate that,
the size is about 1 cm. in length and .5 cm. in diameter of the insect. The bees and, in that
case, they can easily get in and get out and when they settle into the flowers and snip
nectars and the fall of the pollen then they can bring out the pollen to contaminate outside
that. In fact, even assuming that the fence is very small in size of the mess, the holes, still
the insects can fly above that fence because the fence is only about 5 feet in height. So, in
that case it is not safe. Some arguments say that "well the pollen will be dead" but,
according to this technical manual of the Training Workshop On Data Collection for
Researchers And Collaborators of Multi-Location Trials of Fruit and Shoot Borers Resistant
Eggplant, that is the Bt Eggplant produced by the Institute of Plant Breeding in UPLB who is
one of the main researchers the datas, here say according to "Rasco", cited by Dr. Narciso,
is that the pollen can live 8 to 10 days pollen by ability at 20 to 22 degrees centigrade, with
a relative humidity of 50 to 55. x x x Meaning to say, that pollen can survive. This can fly as
fast as something like 60 kilometers per hours so it just take may be 3 minutes and it can
travel 4 kilometers and 4 kilometers is the effective flying distance of a bee in their normal
foraging.
xxxx
x x x There is no data on the contamination so how come they argue, how can they
conclude that it is safe when they have not monitored any potential pollen flow by insect
mitigated or insect mediated flow pollen? So, in that case, the conclusion or the statement
is really beyond what their data may be is if their data is about safety.
xxxx
Dr. Ebora:chanRoblesvirtualLawlibrary
xxxx
x x x I hope that we will be able to look at the experimental design and you will see that all
the things are properly addressed, our risk assessment was done step by step, x x x I beg
to disagree with my friend Dr. Medina because it is becoming ... we are confusing 2 things.
We are not referring to contained trial. We are referring to confined field trial and in the
design of this particular experiment, you have yourBT eggplant, your non-BT eggplant so
that you can compare the performance with the 2 crops. And, on design, you have 5 rows of
plantBT eggplants that will serve as a pollen trap. When we say pollen trap is that it just
open the pollen from the transgenic. It is going to be trapped by those plants, 5 rows, and
then, after that, you have a space of 200 meters surrounding the field which is the isolation
distance. That means no eggplant should be present in that particular distance because that
is the isolation distance that is found to be safe, x x x we know that Bt protein is very
specific x x x effective only against caterpillar x x x if they are eaten by other organism,
they are not affected because it is very specific. The gut of the larva is very alkaline while
the gut of other insects is likely acidic and, in that case, it does not have any harmful effect,
x x x So another thing is we are saying that it seems to be ridiculous that you are saying
that honeybee is going to fly from the fence and the size were even indicated. I would like
to indicate that, that is not the purpose of the fence. It is not to contain the insects. It is to
prevent vandalism which is quite, unfortunately, being done by other groups who are
against the technology. x x x We should be able to have our own space, our own time,
considering the given regulation. Follow them. But our experimentation not be destroyed
because it is only then that we will be able to get the valuable data that is needed for an
informed decision. Without that we will not be able to proceed and I hope we can discuss
this based on the merits of the field trial, not from any other concern because the writ
ofkalikasan is about the effect of field trial in the environment.
Mr. Justice, can I give this immediate counteract to the one statement of Dr. [Ebora]? He
said that the "CrylAcc" is specific to caterpillars and, in fact, only some kinds of caterpillar,
some species, if you can read by chemical and by physical research communications this is
Volume 271, pages 54-58, authored by Vasquez Pardonnet, published in 2000, publication
under letter (b), "CrylAcc protoxin" binds to the mucosal surface of the mouse small
intestine. Small intestine ay mammal po iyan so, meaning, it is a proxy animal for safety
[testing] to humans because we are also mammals so, the mice are usually the mammals
12 years ago, the data has been already there that there is binding site, therefore it is not
only specific to insects but also to mammals. x x x he is saying that, by working on the
natural BT is the same as the transformed BT it is not true because the natural BT has 1155
"base pairs" of nucleic acids. And the transformed GM Crop contains a fragment of
that BT gene which is only half of that. And the mechanism, by the way, x x x the natural
toxin is broken into smaller pieces inside the intestine of the insects because it is alkaline in
terms of its system "ph" and for humans acidic. So it does not work. But, because the
transformed BT is already half, almost half of the normal or natural[ly] occurring BT protein,
it is already activatedand, in that case, that is the reason why there is a test and immediate
effect to non-insect, meaning, to mammal, so that is the explanation of scientist doing
studies on that aspect.
x x xx
The scientists have 3 problems: One, the sparks, we have a tunnel vision; the second, fear
vision; x x x I will give some example. Yes, BTtoxin, was it really good biological control
agent? But it is a completely different gene when you produce it into an edible plant inside
genetically. So, these are 2 different things. What will happen? We are scared that the
efficacy, the use of BT toxin as a spray, as biological control agent, will be vanished because
now there will be resistance against those in BT toxin, x x x resistance is coming very
quickly, just like antibiotic resistance, x x x The second thing, I have asked many plant
biologists this simple question, simple honest question. Do you know any plant that can kill
a bee or a moth? No! There is no way, why? Because those are the "pollinators". Plant
never kills a bee or a moth that goes against nature, x x x So, nature, for thousands of
years, farmers help select or adopt edible non-toxic plants. And, now, with the high science
we are converting them, non-toxic edible plant into a toxic plant. So not only toxic for the
human, for the root microorganisms, x x x Those eggplants are not only for humans to
consume. So human effect, we do not know but what will be the effect? Who will mind the
effect? Is it the animal which goes through it? x x x in India, x x x farmers x x x while
growing BT cotton x x x the leaves and other they use to attract animals to eat. x x x they
found suddenly one thing that the BT cotton plants are not touched by those buffalos, those
cows, those [boars], but they can distinguish which is BT and non-BT. x x x and when their
animals started dying in some cases, they always blame, it is this animal which has eaten
that BT? x x x these are [going] against nature. Only few edible seed plants are there and
we are converting one safest plant into a poisonous and toxic plant and what is the effect on
the root microorganisms on the degrading animals and other? We do not know. That hard
thing is the tunnel vision, the confined field trial, x x x why implement this confined field
trial? Is this safe? Why do they have to do this x x x these things do good for a normal
hybrid that is something but for the gene concept we cannot follow the same separation
rules, same rules? So those are used, those separation distincts, those parameters are used
not for the gene. So, which is the safe field trial protocol for the gene plants? We do not
know. So there goes against [the] writ ofkalikasan.
xxxx
Justice Antonio-Valenzuela:chanRoblesvirtualLawlibrary
How much is the increase in crop yield? x x x
x x x The average increase yield is about 24% and that is for corn. And this data is actually
taken by our own Filipino scientists, Dr. Lluroge and Dr. Gonzales.
xxxx
x x x my question is for Ma'am Nina. I have not been up to date lately on the production of
corn so, you mean to say that corn production in the country has gone up and, because of
that, you are saying that 24% and the income of farmers had gone up as well? Do you
mean to say that the price of com had also gone up as a result of the increase in the volume
of com production in the Philippines?
Well, the price is dictated by the market.
Dr.Malayang:chanRoblesvirtualLawlibrary
That is precisely the point.

Yes.
x x x I am just bringing, hopefully to the attention of the Court, that, when you talk of a
technology such as GM Com or GM Talong affecting market there is also not only the
regulatory but economic regime that is attendant to it that makes adjustments. So it may
not be harmful to humans because we will not come out when we eat it but it might be
harmful to the economy of a particular agricultural crop. x x x
xxxx
Dr. Ebora:chanRoblesvirtualLawlibrary
x x x there are a lot of local studies being conducted now by entomologists from [UPLB] and
those are independent studies. And, precisely, this is to determine the effect on natural
enemies and the different insects x x x and some of those are already available, x x x you
will be able to protect the environment only if you know how to have a proper information in
making the decision. So, again, I am saying that, in field trial, you will be generating a lot of
information that you will be able to use in making a wise decision and informed decision.
x x x I would like to correct the impression lodged by the statement of Dr. Chakraborty
regarding butterflies and moths. Because they are not affected by BT because they are
adult insects. The only one that is affected are actually the larva, not even the pupa. So, we
would like that to be clear because it might create confusion.
The other thing in resistance, x x x even conventionally bred plant [loses] resistance after
sometime and that is the reason why we have a continuous breeding program. So, it is a
natural mechanism by an organism as mode of ad[a]potation. x x x are you telling us that
we are going to stop our breeding work because, anyway, they are going to develop
resistance. I think it is a wrong message x x x.
The other thing is in terms of the study cited by Dr. Medina regarding the "binding." In
toxicology, you can have the effect if you have, for example, the insects, you have a
receptor. The toxin will bind into the receptor. Toxin has to fall and then the toxin has re-
insert into the membrane. If you eliminate one of those steps you do not have any toxicity.
So, that means binding by itself will not be toxicity. It is a wrong impression that, since you
have binding, there will be toxicity. It is simply wrong because, the actuality that it should
bind, it should fall then, it should insert, and it is a very common x x x. To say that binding
is equivalent to toxicity is simply not true.
The other one is natural BT toxin and activated toxin. When you were saying protoxin,
protoxin is basically the entire crystal protein. If it is already inside the gut of the insect it
has to be clipped by the purchase coming from the gut and you have it activated and you
have the toxin. So what you have in plant is already the toxin since the anther and the
toxin, and the toxin in microorganisms, the anther which are already clipped by a purchase
are the same. So, to say that they are different is actually wrong. You are comparing
protoxin and toxin.
x x x regarding the protein, x x x do you know a lot of proteins of another characteristics

and that is why you have to characterize them and you have to separate the protein that
are causing problem and protein that are not causing problem. That is why you have
allergen and, as explained by Dr. Cario, you have to check the sequence. x x x
xxxx
x x x the field trial wanted to basically go to the protocol. This is the efficacy, the efficiency
of the production not that much into the safety. You have to look into it carefully that how
much will get this efficacy, not the safety to that extent x x x. Second point x x x there is
this already mentioned that European Union there is no consensus, x x x they have
published and submitted the systemic list of genetically modified crop need for new
approach in risk assessment. So that is what is needed. There is another article, how does
scientific risk assessment of GM crop fit within wider risk analysis, x x x This is genetic
engineering. The production process is very precise in selecting the inserted gene but not in
its enhancement, x x x they are never looking into it. The second thing, they do not look
into that from the laboratory condition to what is the real life situation. They do not take
that into account x x x so this assessment protocol has to be modified or changed, x x x in
the IAASTD or International Assessment of Agricultural Knowledge, Science and Technology
for Development. There is a supreme body, so many nations, so many experts, scientists x
x x. Only sustainable agricultural practice and that is the only alternative. This GM
technology is not going to help them x x x In my country also, when the BT toxin evaluation
was there, everybody was telling that this is pro-poor, this is scale neutral so, everybody
will be benefitted by that. So, we started questioning, x x x "What are the actual economic
analysis indeed? Just show me". Then, they come up with an answer. Scale neutral means
that even small farmers initially wanted BT cotton and big farmers also wanted BT cotton.
They are partisans. It is not the economic benefit because, economically, it is not going to
be beneficial so it is very much scale dependent its benefit. So, only the big farmers, large
farmers and x x x the vegetable field you never can give separation. Chances you never can
give refuge. The 1/5 of the land given for growing pests so that you cannot do. So it cannot
help technology. They have developed this technology for partisan large scale farming to
completely automated for BT technology where no label will be there. But the failed
experiments, the contracts whose patent will be over within 2-3 years, they are testing
them in our country. So that is the bottom line.
xxxx
Let us put, probably, a close to this hot tub proceeding now.
The issue that the Court is really interested to resolve is whether or not the conduct of the
field trial of BT Talong by the respondents has violated or has threatened to violate the right
of the people to a balanced and healthful ecology. Is there absolute certainty that it has not
so violated such right. Because that is the requirement for applying or not applying the
precautionary principle, x x x
Yes. The answer to that is we have not violated, you know, the right of the people...
But there is no absolute certainty?
Well, quite certain, your Honor, because we have placed all the necessary measures and
they did not show us, you know, there is no evidence of harm that has been shown to this
Court. There is no evidence at all.
That is your opinion.95ChanRoblesVirtualawlibrary

As shown by the foregoing, the hot tub hearing has not yielded any consensus on the points
of contention between the expert witnesses, i.e., the safety of Bt talong to humans and the
environment. Evidently, their opinions are based on contrasting findings in hundreds of
scientific studies conducted from the time Bt technology was deployed in crop farming.
These divergent views of local scientists reflect the continuing international debate on GMOs
and the varying degrees of acceptance of GM technology by states especially the developed
countries (USA, EU, Japan, China, Australia, etc.).
Before proceeding to the current state of global GMO research, we briefly address the
strong objection of petitioners to the CA's reliance on the research conducted by Prof.
Seralini, the French scientist whose study was published in September 2012 in Food and
Chemical Toxicology, which was criticized as a "controversial feeding study." Seralini studied
rats consuming Monsanto's Roundup Ready treated corn for two years (using the same kind
of rats prone to tumors used by Monsanto in obtaining original approval for its product and
the same methodologies, but did it for 2 years which is longer than the 90-day experiment
period done by Monsanto). The rats formed massive cancerous tumors. All three test groups
of rats, with 10 rats in each group, died more frequently, suffered from liver problems, and
had a pronounced number of tumors specifically with grotesque mammary and testicular
tumors.96
Seralini's findings created an uproar and the study was expunged from the publication in
November 2013 even though the Editor-in-Chief found no evidence of fraud or intentional
misrepresentation of the data. Seralini stood by his work and further conducted similar
laboratory experiments. Critics faulted the experimental method, saying the number of rats
studied was too small and their diet was skewed when compared with their natural food
intake. But over 300 scientists condemned the retraction, they said that the retraction
lacked scientific integrity and requested to reinstate the study. Last June 2014, Seralini's
controversial study was republished and has passed a third peer review arranged by the
journal that is republishing the study,Environmental Sciences Europe. The republished
version contains extra material addressing criticisms of the original publication and the raw
data underlying the study's findings, and accompanied by a separate commentary by Prof.
Seralini's team describing the lobbying efforts of GMO crop supporters to force the editor of
the Food and Chemical Toxicology to retract the original publication.97
The aforesaid incident serves to underscore the crucial role of scientists in providing
relevant information for effective regulation of GMOs. There can be no argument that
"[s]ince scientific advice plays a key role in GMO regulations, scientists have a responsibility
to address and communicate uncertainty to policy makers and the public."98
GMOs: The Global Debate
The uncertainties generated by conflicting scientific findings or limited research is not

diminished by extensive use at present of GM technology in agriculture. The global area of
GM crops has reached over 175 million hectares in 2013, more than a hundredfold increase
from 1.7 million hectares in 1996.99 However, the worldwide debate on safety issues
involving GM foods continues.
It has been pointed out that the crux of the controversy surrounding GMOs lies in the very
nature of the technology itself. The process of combining inter-species genes, which is called
recombinant DNA technology, does not have the checks and balances that are imposed by
nature in traditional breeding. Because of this there is a risk of genetic instability. This
means that no one can make any accurate predictions about the long-term effects of GMOs
on human beings and the environment. Extensive testing in this regard is either very
expensive or impractical, and there is still a great deal about the process that scientists do
not understand.100
The basic concepts for the safety assessment of foods derived from GMOs have been
developed in close collaboration under the auspices of the Organization for Economic Co-
operation and Development (OECD) and the United Nations World Health Organization
(WHO) and Food and Agricultural Organization (FAO). The OECD's group of experts on
biosafety recommended conducting the safety assessment of a GM food on case-by-case
basis through comparison to an existing food with a long history of safe use. Thus, the
concept of substantial equivalence was developed that is widely used by national and
international agencies, including the US Food and Drug Administration (FDA), the WHO,
OECD and the FAO.101
"Substantial equivalence embodies the concept that if a new food or food component is
found to be substantially equivalent to an existing food or food component, it can be treated
in the same manner with respect to safety (i.e., the food or food component can be
concluded to be as safe as the conventional food or food component)."102 The safety
assessment of a genetically modified food is directed by the results of a comparison
between the genetically modified food and its conventional counterpart. It follows a
stepwise process aided by a series of structured questions. Factors taken into account in the
safety assessment include:
identity;
source;
composition;
effects of processing/cooking;
transformation process;
the recombinant DNA (e.g. stability of insertion, potential for gene transfer);
protein expression product of the novel DNA:

effects on function;
potential toxicity;
potential allergenicity;
possible secondary effects from gene expression or the disruption of the host DNA or
metabolic pathways, including composition of critical macro, micro-nutrients, anti-nutrients,
endogenous toxicants, allergens, and physiologically active substances; and,
potential intake and dietary impact of the introduction of the genetically modified
food.103ChanRoblesVirtualawlibrary
The above factors are particularly pertinent to the assessment of foods derived from
genetically modified plants.104 However, the concept of substantial equivalence as the
starting point of risk assessment was criticized for being "unscientific and arbitrary" and
"intentionally vague and ill-defined to be as flexible, malleable, and open to interpretation
as possible." It is likewise argued that "comparisons are designed to conceal significant
changes resulting from genetic modifications," "the principle is weak and misleading even
when it does not apply, effectively giving producers carte blanche", and that there is
insufficiency of background information for assessing substantial equivalence. A paper
presented at a WHO workshop pointed out that the main difficulty associated with the
biosafety assessment of transgenic crops is the unpredictable nature of transformation. This
unpredictability raises the concern that transgenic plants will behave in an inconsistent
manner when grown commercially.105
The method of testing GM foods was further described as inadequate, as currently the
testing procedures consist almost exclusively of specific chemical and biochemical analytical
procedures designed to quantitate a specific nutrient or a specific toxin or allergen. It was
noted that in actual practice, the investigator compares only selected characteristics of the
genetically engineered food to those of its non-genetically engineered counterpart. These
testing schemes are viewed as completely incapable of detecting unsuspected or
unanticipated health risks that are generated by the process of genetic engineering itself.
Hence, clinical tests are recommended because only such tests have the broad specificity
and relevance to human physiology needed to detect the wide range of allergens and toxins
that might result from unexpected side-effects of the genetic engineering process. 106
In another review article, it was pointed out that since a genetic modification is aimed at
introducing new traits into organisms, the result will always be a different composition of
genes and proteins. The most reasonable interpretation therefore is that a food derived
from a GMO is considered substantially equivalent to its traditional counterpart if the genetic
modification has not resulted in intended or unintended alterations in the composition of
relevant nutrients and inherent toxicants of the organism, and that the new genes and
proteins have no adverse impact on the dietary value of the food and do not therefore pose
any harm to the consumer or the environment. It was thus concluded that establishing
substantial equivalence is not a safety assessment in itself, but is a pragmatic tool to
analyze the safety of a new food, and hence in the testing of new foods, the latest scientific
methods have to be used. All conceivable efforts to protect consumers from health risks
should thus be made, and at the same time, consumers should be adequately informed
about the real extent of risks and hazards.107
The GMO global debate has so intensified that each side has accused the other camp of
mounting "paid advocacy" and criticizing studies adverse to their respective positions as
flawed or unscientific. Both the agri-business industry, and groups opposed to GMOs
including the organic farming industry, had utilized enormous resources and funds for
lobbying and media campaigns locally and internationally.
What appears to be highlighted in the promotion of GM crop production is the marked

reduction in the use of harmful chemical pesticides.108 The resulting increase in crop yields
grown on relatively small parcels of land is also regarded as a solution to the problem of
feeding a fast growing world population. Proponents of GM biotechnology insist that GM
foods are safe to humans and the environment based on scientific studies. On the other
hand, anti-GM activists disseminate adverse results of recent studies confirming the health
and environmental hazards of genetically engineered crop farming. Also, some countries
have maintained a firm stance against genetically engineered crops or GM foods, such as
France and Austria. Over the years, however, accumulated evidence of the dangers of
GMOs, as well as unrealized socio-economic benefits, has been increasingly recognized by
the scientific community.
That GE farming increases crop yield has been debunked by new studies proving the
contrary. In the article, "GM Crops Do Not Increase Yield Potential," the Institute for
Responsible Technology cited reports from actual field studies in different countries
revealing downward figures for Bt crops, as summarized below:
Bt corn took longer to reach maturity and produced up to 12% lower yields than non-GM
counterparts.
Evidence for the "yield drag" of Roundup Ready soybeans has been known for over a
decade - with the disruptive effect of the GM transformation process accounting for
approximately half the drop in yield.
Based on a comprehensive evaluation of yield since the introduction of commercial GM

crops, the International Assessment of Agricultural Knowledge, Science and Technology
(IAASTD) noted that GM crop yields were "highly variable" and in some cases, "yields
declined".
The Union of Concerned Scientists' 2009 report Failure to Yield, based on published peer-
reviewed studies conducted by academic scientists using adequate controls, concluded that
genetically engineered herbicide tolerant soybeans and herbicide-tolerant corn has not
increased yields while insect-resistant corn has only marginally improved yields. Traditional
breeding outperforms genetic engineering hands down.
In developing countries, crop failure can have severe consequences as illustrated in India,
where a large number of cotton farmers, unable to pay back high interest loans, have
committed suicide. Several investigations have implicated the unreliable performance
of Btcotton as a major contributor.
Bt cotton was overrun by pests in Indonesia and China. In South Africa, farmers faced
pest problems and no increase in yield. The 100,000 hectares planted in 1998 dropped 80%
to 22,500 by 2002. As of 2004, 85% of the original Bt cotton farmers had given up while
those remaining had to be subsidized by the government. Similarly in the US, Bt cotton
yields are not necessarily consistent or more profitable.109ChanRoblesVirtualawlibrary
GM technology is thus seen as a failure in terms of addressing food security; rather, it
supports corporate control and impedes common persons' access to adequate food. The root
cause of hunger is not a lack of food, GM critics say, but a lack of access to food. The poor
lack money to buy food and lack of land on which to grow it. It is essential to follow
sustainable traditional farming practices that keeps food production in the hands of small-
scale farmers, thereby reducing corporate control.110
As regards the existing uncertainties of potential long-term effects of the release into the
environment of GMOs, the BEETLE (Biological and Ecological Evaluation towards Long-term
Effects) study of 2009,111 made for the European Commission, analyzed more than 700
scientific publications from all over the world about GMOs and their potential effects on
environment including biodiversity, and received contributions to online surveys from 100 to
167 invited environmental experts. This study declared the following uncertainties:
increased fitness of GM plants;
outbreeding depression after hybridization with wild relatives;
outcrossing between related species and the fate of a transferred GM trait;
altered flower phenology;
altered fecundity, increasing seed (gene) flow;
increased frequency of horizontal gene flow;
resistance development of pests;
effects on non-target organisms;
effects on non-target organisms due to altered nutritional composition of the GM plant;
effects on non-target organisms due to accumulation of toxic compounds;
effects on rhizo sphere microbiota;
effects on symbiotic non-target organisms;
changes in soil functions caused by GM traits;
effects on biological control;
altered use of agrochemicals;
indirect changes in susceptibility of crops against pathogens;
adverse effects on agro-biodiversity;
indirect effects in fertilizer use;
potential changes in landscape structure;
increased production of greenhouse gases;
increased mineral nutrient erosion and fertilizer leaching;
altered chemical attributes of soil fraction;
emerging of stacked events;
the necessity of regional differentiation of risk assessments.112ChanRoblesVirtualawlibrary

A critical observation was made on the argument that there is not enough evidence to reject
the hypothesis that GMO and GM food is safe. The fact emphasized was that experiments
designed to clarify potential adverse effects on health or the environment are nearly absent
in peer-reviewed journals. Scientific uncertainty, omitted research areas, and lack of basic
knowledge crucial to risk assessments have become apparent. The present uncertainty
warrants further research and it has been demonstrated that there is a risk of bias relying
on hypotheses that dominate mainstream science. There is therefore a need for
independent research that is without prejudice and unbiased by economic and professional
interests.113 In another article it was noted that the clinical trials carried out to ensure that
negative externalities do not affect humans and the environment are conducted by the
same private firms that created the products, raising conflict of interest concerns. 114
While existing literature on health effects of GM foods indicates that they are generally safe,
and similar conclusions have been drawn by government agencies and scientific
organizations such as FAO/WHO and Society of Toxicology, a growing number of
independent scientists have spoken strongly against such generalizations from limited
research mostly sponsored by biotech companies.
In 1999, the Open Letter from World Scientists to All Governments signed by 815 scientists
from 82 countries expressed that they are extremely concerned about the hazards of GMOs
to biodiversity, food safety, human and animal health, and demanded a moratorium on
environmental releases in accordance with the precautionary principle. They are opposed to
GM crops that will intensify corporate monopoly, exacerbate inequality and prevent the
essential shift to sustainable agriculture that can provide food security and health around
the world, and called a ban on patents of life forms and living processes which threaten food
security, sanction biopiracy of indigenous knowledge and genetic resources and violate basic
human rights and dignity.115
On May 10, 2003, dozens of prominent scientists from various disciplines banded together
as an Independent Science Panel on GM at a public conference in London. On June 15,
2003, they released a Final Report116 as their contribution to the National GM Debate in UK.
In a summary117 of the final report, these scientists declared the following:
The Case for a GM-Free Sustainable World - A Summary
Why GM-Free?
1. GM crops failed to deliver promised benefits
o No increase in yields or significant reduction in herbicide and pesticide use
o United States lost an estimated $12 billion over GM crops amid worldwide rejection
o Massive crop failures of up to 100% reported in India
o High risk future for agbiotech: "Monsanto could be another disaster waiting to happen for
investors"
2. GM crops posing escalating problems on the farm
o Transgenic lines unstable: "most cases of transgene inactivation never reach the
literature"
o Triple herbicide-tolerant volunteers and weeds emerged in North America
o Glyphosate-tolerant weeds plague GM cotton and soya fields, atrazine back in use
o Bt biopesticide traits threatening to create superweeds and bt-resistant pests
3. Extensive transgenic contamination unavoidable
o Extensive transgenic contamination found in maize landraces in remote regions of Mexico

o 32 out of 33 commercial seed stocks found contaminated in Canada
o Pollen remains airborne for hours, and a 35 mile per hour wind speed is unexceptional
o There can be no co-existence of GM and non-GM crops
4. GM crops not safe
o GM crops have not been proven safe: regulation was fatally flawed from the start
o The principle of 'substantial equivalence', vague and ill defined, gave companies complete
licence in claiming GM products 'substantially equivalent' to non-GM, and hence 'safe'
5. GM food raises serious safety concerns
o Despite the paucity of credible studies, existing findings raise serious safety concerns
o 'Growth-factor-like' effects in the stomach and small intestine of young rats were
attributed to the transgenic process or the transgenic construct, and may hence be general
to all GM food
6. Dangerous gene products are incorporated into food crops
o Bt proteins, incorporated into 25% of all GM crops worldwide, are harmful to many non-
target insects, and some are potent immunogens and allergens for humans and other
mammals
o Food crops are increasingly used to produce pharmaceuticals and drugs, including
cytokines known to suppress the immune system, or linked to dementia, neurotoxicity and
mood and cognitive side effects; vaccines and viral sequences such as the 'spike' protein
gene of the pig coronavirus, in the same family as the SARS virus linked to the current
epidemic; and glycoprotein gene gpl20 of the AIDS virus that could interfere with the
immune system and recombine with viruses and bacteria to generate new and unpredictable
pathogens.
7. Terminator crops spread male sterility
o Crops engineered with 'suicide' genes for male sterility, promoted as a means of
preventing the spread of transgenes, actually spread both male sterility and herbicide
tolerance traits via pollen.
8. Broad-spectrum herbicides highly toxic to humans and other species
o Glufosinate ammonium and glyphosate, used with herbicide tolerant GM crops that
currently account for 75% of all GM crops worldwide, are both systemic metabolic poisons
o Glufosinate ammonium is linked to neurological, respiratory, gastrointestinal and

haematological toxicities, and birth defects in humans and mammals; also toxic to
butterflies and a number of beneficial insects, to larvae of clams and oysters,Daphnia and
some freshwater fish, especially the rainbow trout; it inhibits beneficial soil bacteria and
fungi, especially those that fix nitrogen.
o Glyphosate is the most frequent cause of complaints and poisoning in the UK, and
disturbances to many body functions have been reported after exposures at normal use
levels; glyphosate exposure nearly doubled the risk of late spontaneous abortion, and
children born to users of glyphosate had elevated neurobehavioral defects; glyphosate
retards development of the foetal skeleton in laboratory rats, inhibits the synthesis of
steroids, and is genotoxic in mammals, fish and frogs; field dose exposure of earthworms
caused at least 50 percent mortality and significant intestinal damage among surviving
worms; Roundup (Monsanto's formulation of glyphosate) caused cell division dysfunction
that may be linked to human cancers.
9. Genetic engineering creates super-viruses
o The most insidious dangers of genetic engineering are inherent to the process; it greatly
enhances the scope and probability of horizontal gene transfer and recombination, the main
route to creating viruses and bacteria that cause disease epidemics.
o Newer techniques, such as DNA shuffling, allow geneticists to create in a matter of

minutes in the laboratory millions of recombinant viruses that have never existed in billions
of years of evolution
o Disease-causing viruses and bacteria and their genetic material are the predominant
materials and tools of genetic engineering, as much as for the intentional creation of bio-
weapons.
10. Transgenic DNA in food taken up by bacteria in human gut
o Transgenic DNA from plants has been taken up by bacteria both in the soil and in the gut
of human volunteers; antibiotic resistance marker genes can spread from transgenic food to
pathogenic bacteria, making infections very difficult to treat.
11. Transgenic DNA and cancer
o Transgenic DNA known to survive digestion in the gut and to jump into the genome of
mammalian cells, raising the possibility for triggering cancer
o Feeding GM products such as maize to animals may carry risks, not just for the animals
but also for human beings consuming the animal products
12. CaMV 35S promoter increases horizontal gene transfer
o Evidence suggests that transgenic constructs with the CaMV 35S promoter could be
especially unstable and prone to horizontal gene transfer and recombination, with all the
attendant hazards: gene mutations due to random insertion, cancer, re-activation of
dormant viruses and generation of new viruses.
13. A history of misrepresentation and suppression of scientific evidence
o There has been a history of misrepresentation and suppression of scientific evidence,

especially on horizontal gene transfer. Key experiments failed to be performed, or were
performed badly and then misrepresented. Many experiments were not followed up,
including investigations on whether the CaMV 35S promoter is responsible for the 'growth-
factor-like' effects observed in young rats fed GM potatoes.
GM crops have failed to deliver the promised benefits and are posing escalating
problems on the farm. Transgenic contamination is now widely acknowledged to
be unavoidable, and hence there can be no co-existence of GM and non-GM
agriculture. Most important of all, GM crops have not been proven safe. On the
contrary, sufficient evidence has emerged to raise serious safety concerns, that if
ignored could result in irreversible damage to health and the environment. GM
crops should therefore be firmly rejected now.
The ISP further concluded that "[s]ustainable agricultural practices have proven beneficial in
all aspects relevant to health and the environment. In addition, they bring food security and
social and cultural well being to local communities everywhere. There is an urgent need for
a comprehensive global shift to all forms of sustainable agriculture.118
In 2008, a Global Report119 was released by the International Assessment of Agricultural

Knowledge, Science and Technology for Development (IAASTD), a three-year international
collaborative effort (2005-2007) developed out of a consultative process involving 900
participants and 110 countries from all over the world. This global initiative assessed
agricultural knowledge, science and technology (AKST) in relation to meeting development
and sustainability goals of (1) reducing hunger and poverty; (2) improving nutrition, health
and rural livelihoods; and (3) facilitating social and environmental sustainability. The report
concluded that a radical transformation of the world's food and farming systems - especially
the policies and institutions that affect them - is necessary if we are to overcome converging
economic and environmental crises and feed the world sustainably. It also warned that
technologies such as high-yielding crop varieties, agrochemicals and mechanization have
primarily benefited the better-resourced groups in society and transnational corporations,
rather than the most vulnerable ones. In general, the IAASTD found little evidence to
support a conclusion that modern biotechnologies are well suited to meeting the needs of
small-scale and subsistence farmers, particularly under the increasingly unpredictable
environmental and economic conditions tha they face.120
More recently, in 2013, the European Network of Scientists for Social and Environmental
Responsibility (ENSSER), an international group of more than 90 scientists, academics and
physicians, released a statement that there is no scientific consensus on the safety of GM
foods and crops.121 The statement122 is herein reproduced:
10/21/13
Statement: No scientific consensus on GMO safety
As scientists, physicians, academics, and experts from disciplines relevant to the scientific,
legal, social and safety assessment aspects of genetically modified organisms (GMOs), we
strongly reject claims by GM seed developers and some scientists, commentators, and
journalists that there is a "scientific consensus" on GMO safety and that the debate on this
topic is "over".
We feel compelled to issue this statement because the claimed consensus on GMO safety
does not exist. The claim that it does exist is misleading and misrepresents the currently
available scientific evidence and the broad diversity of opinion among scientists on this
issue. Moreover, the claim encourages a climate of complacency that could lead to a lack of
regulatory and scientific rigour and appropriate caution, potentially endangering the health
of humans, animals, and the environment.
Science and society do not proceed on the basis of a constructed consensus, as current
knowledge is always open to well-founded challenge and disagreement. We endorse the
need for further independent scientific inquiry and informed public discussion on GM product
safety and urge GM proponents to do the same.
Some of our objections to the claim of scientific consensus are listed below.
1. There is no consensus on GM food safety
Regarding the safety of GM crops and foods for human and animal health, a comprehensive
review of animal feeding studies of GM crops found "An equilibrium in the number [of]
research groups suggesting, on the basis of their studies, that a number of varieties of GM
products (mainly maize and soybeans) are as safe and nutritious as the respective
conventional non-GM plant, and those raising still serious concerns". The review also found
that most studies concluding that GM foods were as safe and nutritious as those obtained by
conventional breeding were "performed by biotechnology companies or associates, which
are also responsible [for] commercializing these GM plants".
A separate review of animal feeding studies that is often cited as showing that GM foods are
safe included studies that found significant differences in the GM-fed animals. While the
review authors dismissed these findings as not biologically significant, the interpretation of
these differences is the subject of continuing scientific debate and no consensus exists on
the topic.
Rigorous studies investigating the safety of GM crops and foods would normally involve
animal feeding studies in which one group of animals is fed GM food and another group is
fed an equivalent non-GM diet. Independent studies of this type are rare, but when such
studies have been performed, some have revealed toxic effects or signs of toxicity in the
GM-fed animals. The concerns raised by these studies have not been followed up by
targeted research that could confirm or refute the initial findings.
The lack of scientific consensus on the safety of GM foods and crops is underlined by the
recent research calls of the European Union and the French government to investigate the
long-term health impacts of GM food consumption in the light of uncertainties raised by
animal feeding studies. These official calls imply recognition of the inadequacy of the
relevant existing scientific research protocols. They call into question the claim that existing
research can be deemed conclusive and the scientific debate on biosafety closed.
2. There are no epidemiological studies investigating potential effects of GM food

consumption on human health
It is often claimed that "trillions of GM meals" have been eaten in the US with no ill effects.
However, no epidemiological studies in human populations have been carried out to
establish whether there are any health effects associated with GM food consumption. As GM
foods are not labelled in North America, a major producer and consumer of GM crops, it is
scientifically impossible to trace, let alone study, patterns of consumption and their impacts.
Therefore, claims that GM foods are safe for human health based on the experience of North
American populations have no scientific basis.
3. Claims that scientific and governmental bodies endorse GMO safety are
exaggerated or inaccurate
Claims that there is a consensus among scientific and governmental bodies that GM foods
are safe, or that they are no more risky than non-GM foods, are false.
For instance, an expert panel of the Royal Society of Canada issued a report that was highly
critical of the regulatory system for GM foods and crops in that country. The report declared
that it is "scientifically unjustifiable" to presume that GM foods are safe without rigorous
scientific testing and that the "default prediction" for every GM food should be that the
introduction of a new gene will cause "unanticipated changes" in the expression of other
genes, the pattern of proteins produced, and/or metabolic activities. Possible outcomes of
these changes identified in the report included the presence of new or unexpected allergens.
A report by the British Medical Association concluded that with regard to the long-term
effects of GM foods on human health and the environment, "many unanswered questions
remain" and that "safety concerns cannot, as yet, be dismissed completely on the basis of
information currently available". The report called for more research, especially on potential
impacts on human health and the environment.
Moreover, the positions taken by other organizations have frequently been highly qualified,
acknowledging data gaps and potential risks, as well as potential benefits, of GM
technology. For example, a statement by the American Medical Association's Council on
Science and Public Health acknowledged "a small potential for adverse events ... due mainly
to horizontal gene transfer, allergenicity, and toxicity" and recommended that the current
voluntary notification procedure practised in the US prior to market release of GM crops be
made mandatory. It should be noted that even a "small potential for adverse events" may
turn out to be significant, given the widespread exposure of human and animal populations
to GM crops.
A statement by the board of directors of the American Association for the Advancement of
Science (AAAS) affirming the safety of GM crops and opposing labelling cannot be assumed
to represent the view of AAAS members as a whole and was challenged in an open letter by
a group of 21 scientists, including many long-standing members of the AAAS. This episode
underlined the lack of consensus among scientists about GMO safety.
4. EU research project does not provide reliable evidence of GM food safety
An EU research project has been cited internationally as providing evidence for GM crop and
food safety. However, the report based on this project, "A Decade of EU-Funded GMO
Research", presents no data that could provide such evidence, from long-term feeding
studies in animals.
Indeed, the project was not designed to test the safety of any single GM food, but to focus
on "the development of safety assessment approaches". Only five published animal feeding
studies are referenced in the SAFOTEST section of the report, which is dedicated to GM food
safety. None of these studies tested a commercialised GM food; none tested the GM food for
long-term effects beyond the subchronic period of 90 days; all found differences in the GM-
fed animals, which in some cases were statistically significant; and none concluded on the
safety of the GM food tested, let alone on the safety of GM foods in general. Therefore the
EU research project provides no evidence for sweeping claims about the safety of any single
GM food or of GM crops in general.
5. List of several hundred studies does not show GM food safety
A frequently cited claim published on an Internet website that several hundred studies
"document the general safety and nutritional wholesomeness of GM foods and feeds" is
misleading. Examination of the studies listed reveals that many do not provide evidence of
GM food safety and, in fact, some provide evidence of a lack of safety. For
example:chanRoblesvirtualLawlibrary
Many of the studies are not toxicological animal feeding studies of the type that can
provide useful information about health effects of GM food consumption. The list includes
animal production studies that examine parameters of interest to the food and agriculture
industry, such as milk yield and weight gain; studies on environmental effects of GM crops;
and analytical studies of the composition or genetic makeup of the crop.
Among the animal feeding studies and reviews of such studies in the list, a substantial
number found toxic effects and signs of toxicity in GM-fed animals compared with controls.
Concerns raised by these studies have not been satisfactorily addressed and the claim that
the body of research shows a consensus over the safety of GM crops and foods is false and
irresponsible.
Many of the studies were conducted over short periods compared with the animal's total
lifespan and cannot detect long-term health effects.
We conclude that these studies, taken as a whole, are misrepresented on the Internet
website as they do not "document the general safety and nutritional wholesomeness of GM
foods and feeds". Rather, some of the studies give serious cause for concern and should be
followed up by more detailed investigations over an extended period of time.
6. There is no consensus on the environmental risks of GM crops
Environmental risks posed by GM crops include the effects of Bt insecticidal crops on non-
target organisms and effects of the herbicides used in tandem with herbicide-tolerant GM
crops.
As with GM food safety, no scientific consensus exists regarding the environmental risks of
GM crops. A review of environmental risk assessment approaches for GM crops identified
shortcomings in the procedures used and found "no consensus" globally on the
methodologies that should be applied, let alone on standardized testing procedures.
Some reviews of the published data on Bt crops have found that they can have adverse
effects on non-target and beneficial organisms - effects that are widely neglected in
regulatory assessments and by some scientific commentators. Resistance to Bt toxins has
emerged in target pests, and problems with secondary (non-target) pests have been noted,
for example, in Bt cotton in China.
Herbicide-tolerant GM crops have proved equally controversial. Some reviews and individual
studies have associated them with increased herbicide use, the rapid spread of herbicide-
resistant weeds, and adverse health effects in human and animal populations exposed to
Roundup, the herbicide used on the majority of GM crops.
As with GM food safety, disagreement among scientists on the environmental risks of GM

crops may be correlated with funding sources. A peer-reviewed survey of the views of 62
life scientists on the environmental risks of GM crops found that funding and disciplinary
training had a significant effect on attitudes. Scientists with industry funding and/or those
trained in molecular biology were very likely to have a positive attitude to GM crops and to
hold that they do not represent any unique risks, while publicly-funded scientists working
independently of GM crop developer companies and/or those trained in ecology were more
likely to hold a "moderately negative" attitude to GM crop safety and to emphasize the
uncertainty and ignorance involved. The review authors concluded, "The strong effects of
training and funding might justify certain institutional changes concerning how we organize
science and how we make public decisions when new technologies are to be evaluated."
7. International agreements show widespread recognition of risks posed by GM

foods and crops
The Cartagena Protocol on Biosafety was negotiated over many years and implemented in
2003. The Cartagena Protocol is an international agreement ratified by 166 governments
worldwide that seeks to protect biological diversity from the risks posed by GM technology.
It embodies the Precautionary Principle in that it allows signatory states to take
precautionary measures to protect themselves against threats of damage from GM crops
and foods, even in case of a lack of scientific certainty.
Another international body, the UN's Codex Alimentarius, worked with scientific experts for
seven years to develop international guidelines for the assessment of GM foods and crops,
because of concerns about the risks they pose. These guidelines were adopted by the Codex
Alimentarius Commission, of which over 160 nations are members, including major GM crop
producers such as the United States.
The Cartagena Protocol and Codex share a precautionary approach to GM crops and foods,
in that they agree that genetic engineering differs from conventional breeding and that
safety assessments should be required before GM organisms are used in food or released
into the environment.
These agreements would never have been negotiated, and the implementation processes
elaborating how such safety assessments should be conducted would not currently be
happening, without widespread international recognition of the risks posed by GM crops and
foods and the unresolved state of existing scientific understanding.
Concerns about risks are well-founded, as has been demonstrated by studies on some GM
crops and foods that have shown adverse effects on animal health and non-target
organisms, indicated above. Many of these studies have, in fact, fed into the negotiation
and/or implementation processes of the Cartagena Protocol and Codex. We support the
application of the Precautionary Principle with regard to the release and transboundary
movement of GM crops and foods.
Conclusion
In the scope of this document, we can only highlight a few examples to illustrate that the
totality of scientific research outcomes in the field of GM crop safety is nuanced, complex,
often contradictory or inconclusive, confounded by researchers' choices, assumptions, and
funding sources, and in general, has raised more questions than it has currently answered.
Whether to continue and expand the introduction of GM crops and foods into the human
food and animal feed supply, and whether the identified risks are acceptable or not, are
decisions that involve socioeconomic considerations beyond the scope of a narrow scientific
debate and the currently unresolved biosafety research agendas. These decisions must
therefore involve the broader society. They should, however, be supported by strong
scientific evidence on the long-term safety of GM crops and foods for human and animal
health and the environment, obtained in a manner that is honest, ethical, rigorous,
independent, transparent, and sufficiently diversified to compensate for bias.
Decisions on the future of our food and agriculture should not be based on misleading and
misrepresentative claims that a "scientific consensus" exists on GMO
safety.123ChanRoblesVirtualawlibrary
One of the most serious concerns raised against GM crops is that expressed by one of our
political analysts now serving in Congress, viz:
x x x patented GMO seeds concentrate power in the hands of a few biotech corporations and
marginalize small farmers. As the statement x x x of the 81 members of the World Future
Council put it, "While profitable to the few companies producing them, GMO seeds reinforce
a model of farming that undermines sustainability of cash-poor farmers, who make up most
of the world's hungry. GMO seeds continue farmers' dependency on purchased seed and
chemical inputs. The most dramatic impact of such dependency is in India, where 270,000
farmers, many trapped in debt for buying seeds and chemicals, committed suicide between
1995 and 2012."124ChanRoblesVirtualawlibrary
In sum, current scientific research indicates that the biotech industry has not sufficiently
addressed the uncertainties over the safety of GM foods and crops.
Bt Brinjal Controversy in India
Brinjal (eggplant) is a major crop and a popular component of food diet in India, an
important ingredient in Ayurvedic medicine, and is of special value for the treatment of
diabetes and liver problems. The attempted commercial propagation of Bt brinjal spawned
intense debate and suffered obstacles due to sustained opposition from local scientists,
academicians and non-government organizations in India.
As in the case of the Philippines, proponents of Bt brinjal in India, believed to be the origin
of eggplant's diversity, said that if the new technology is adopted, decrease in the use of
insecticides, substantial increase in crop yields and greater food availability, can be
expected. But opponents argued, alongside food safety concerns, that there is a potential
for toxic effects on populations of non-target invertebrates, and potential replacement of
traditional landraces as farmers may move towards cultivation of a restricted number of GE
forms. In addition to these issues, there was the additional concern raised over the transfer
of Bt transgenes to non-GE brinjal or its wild relatives, and the consequences for plant
biodiversity.125
Writ petitions were lodged before the Supreme Court of India to stop the release into the
environment of Bt brinjal (Aruna Rodrigues and Ors, etc. vs. Union of India). The Court
formed a Technical Evaluation Committee (TEC) composed of experts nominated by the
parties to undertake a comprehensive evaluation of the feasibility of allowing the open field
trials of Bt brinjal and submit a final report, and in the event the TEC is unable to submit
said final report, it was directed instead to submit an interim report within the period set by
the Court on the following issue: Whether there should or should not be any ban, partial or
otherwise, upon conducting of open field tests of the GMOs? In the event open field trials
are permitted, what protocol should be followed and conditions, if any, that may be imposed
by the Court for implementation of open field trials." The Court also directed that the TEC
would be free to review report or studies authored by national and international scientists if
it was necessary.
In its Interim Report dated October 17, 2012, the TEC recommended that, in view of its
findings, all field trials should be stopped until certain conditions have been met. A Final
Report126 was eventually submitted to the Court which noted weaknesses in the conditions
imposed by the regulatory agencies for conduct of field trials, as follows: 1) post-release
monitoring, an important aspect of environmental and health safety (if the GE crop is
consumed as food) is not given adequate attention; 2) the importance of need and socio-
economic impact assessment of GM products as one of the criteria that should be applied in
the evaluation at an early stage; and 3) need for additional tests not currently done such as
long-term feeding studies for assessment of chronic and intergeneration toxicity in small
animals, genomewide expression analysis in the toxicity studies to screen for possible
unintended effects on host physiology. It was recommended that a moratorium on field
trials of herbicide tolerant crops until the issue had been examined by an independent
committee, and also noted that said technology may not be suitable in the Indian socio-
economic context due to possible impact of extensive use of broad spectrum herbicides on
the environmental biodiversity and smaller average farm size. Examination of the safety
dossier of Bt brinjal indicated certain concerns on the data, which had not been addressed in
the course of regulatory testing leading to approval due to lack of full-time qualified
personnel for the purpose. Overall, it was found that the quality of information in several of
the applications is far below what would be expected and required for rigorous evaluation by
a regulatory body and is unlikely to meet international regulatory guidelines.
On the mechanism of CrylAc proteins, the TEC cited studies showing that it is possible under
certain conditions for CrylAc protein to kill insects that lack the cadherin receptor. Also,
while it is generally believed that Cry toxins do not exert an effect on vertebrates as
vertebrates lack the receptor for Cry toxins, two studies (one in mice and the other in cows)
have provided evidence that Cry proteins can bind to mammalian intestinal epithelial cells.
The report also discussed the emergence of resistance in insect pests, health and food
safety of Bt transgenics, and herbicide tolerant crops and their effect on biodiversity and the
environment. Specific recommendations were made to address the foregoing issues and the
report concluded that:
The release of a GM crop into its area of origin or diversity has far greater ramifications and
potential for negative impact than for other species. To justify this, there needs to be
extraordinarily compelling reasons and only when other choices are not available. GM crops
that offer incremental advantages or solutions to specific and limited problems are not
sufficient reasons to justify such release. The TEC did not find any such compelling reasons
under the present conditions. The fact is that unlike the situation in 1960s there is no
desperate shortage of food and in fact India is in a reasonably secure position. The TEC
therefore recommends that release of GM crops for which India is a centre of origin or
diversity should not be allowed.127ChanRoblesVirtualawlibrary
In 2010, responding to large-scale opposition to Bt brinjal's introduction in India, former
environment minister Jairam Ramesh placed an indefinite moratorium on its further field
testing. This was done after discussions with scientists, both pro and anti-GM crops,
activists and farmers across the country.
GMO Field Trials in the Philippines
As earlier mentioned, the conduct of field trials for GE plants and crops in our country is
governed primarily by DAO 08-2002 and implemented by the DA through the BPI.
Petitioners EMB, BPI and FPA all maintain there was no unlawful deviation from its
provisions and that respondents so far failed to present evidence to prove their claim that Bt
talong field trials violated environmental laws and rules.
Within the DA-BPI, it is the Scientific and Technical Review Panel (STRP) which, as an
advisory body, was tasked to "evaluate the potential risks of the proposed activity to human
health and the environment based on available scientific and technical information." Under
DA Special Order 241 and 384 (2002) the STRP membership was expanded to include "an
independent pool of experts...tapped by the [BPI] to evaluate the potential risks of the
proposed release of GMOs for field testing, propagation, food, feed to human health and the
environment based on available scientific and technical information."
DAO 08-2002 supplements the existing guidelines on the importation and release into the
environment of products of modern biotechnology by institutionalizing existing operational
arrangements between DA-BPI and the NCBP. Effective July 2003, applications for field test
are received and processed by DA-BPI, but the approval process for projects on contained
use remains under the supervision of NCBP. A mandatory risk assessment of GM plant and
plant products is required prior to importation or release into the environment. Experiments
must first be conducted under contained conditions, then the products are tested in field
trials the product is reviewed for commercial release. Risk assessment is done according to
the principles provided for by the Cartagena Protocol on Biosafety. Risk assessment is
science-based, carried out on a case by case manner, targets a specific crop and its
transformation event, adopts the concept of substantial equivalence in identifying risk,
allows review, and provides that the absence of scientific information or consensus should
not be interpreted to indicate the absence or presence and level of risk. 128
Greenpeace, however, claims there is actually only a committee of three to five members
which conducts the risk assessment, and is aided by an informal group, the DA's Biotech
Advisory Team (BAT), of representatives from government biotech regulatory agencies: BPI,
BAI, FPA, DENR, DOH and DOST. It also assails the government regulatory agencies for
their refusal to open to scrutiny the names and qualifications of those incharge of regulation
and risk assessment, and for allowing the entry and use of all GMO applications requested
by multinational companies.129
It must be stressed that DAO 08-2002 and related DA orders are not the only legal bases
for regulating field trials of GM plants and plant products. EO 514 130 establishing the
National Biosafety Framework (NBF) clearly provides that the NBF shall apply to the
development, adoption and implementation of all biosafety policies, measures and
guidelines and in making biosafety decisions concerning the research, development,
handling and use, transboundary movement, release into the environment and management
of regulated articles.131 The objective of the NBF is to "[e]nhance the decision-making
system on the application of products of modern biotechnology to make it more efficient,
predictable, effective, balanced, culturally appropriate, ethical, transparent and
participatory".132 Thus, "the socio-economic, ethical, and cultural benefit and risks of
modern biotechnology to the Philippines and its citizens, and in particular on small farmers,
indigenous peoples, women, small and medium enterprises and the domestic scientific
community, shall be taken into account in implementing the NBF."133 The NBF also
mandates that decisions shall be arrived at in a transparent and participatory manner,
recognizing that biosafety issues are best handled with the participation of all relevant
stakeholders and organizations who shall have appropriate access to information and the
opportunity to participate responsibly and in an accountable manner in biosafety decision-
making process.134
Most important, the NBF requires the use of precaution, as provided in Section 2.6 which
reads:
2.6 Using Precaution. -In accordance with Principle 15 of the Rio Declaration of 1992 and
the relevant provisions of the Cartagena Protocol on Biosafety, in particular Articles 1, 10
(par. 6) and 11 (par. 8), the precautionary approach shall guide biosafety decisions. The
principles and elements of this approach are hereby implemented through the decision-
making system in the NBF;
The NBF contains general principles and minimum guidelines that the concerned agencies
are expected to follow and which their respective rules and regulations must conform with.
In cases of conflict in applying the principles, the principle of protecting public interest and
welfare shall always prevail, and no provision of the NBF shall be construed as to limit the
legal authority and mandate of heads of departments and agencies to consider the national
interest and public welfare in making biosafety decisions.135
As to the conduct of risk assessment to identify and evaluate the risks to human health and
the environment, these shall be guided by the following:
5.2.1 Principles of Risk Assessment. - The following principles shall be followed when
performing a RA to determine whether a regulated article poses significant risks to human
health and the environment:chanRoblesvirtualLawlibrary
5.2.1.1 The RA shall be carried out in a scientifically sound and transparent manner based
on available scientific and technical information. The expert advice of and
guidelines developed by, relevant international organizations, including
intergovernmental bodies, and regulatory authorities of countries with
significant experience in the regulatory supervision of the regulated
article shall be taken into account in the conduct of risk assessment;
5.2.1.2 Lack of scientific knowledge or scientific consensus shall not be interpreted

as indicating a particular level of risk, an absence of risk, or an acceptable risk;
5.2.1.3 The identified characteristics of a regulated article and its use which have the
potential to pose significant risks to human health and the environment shall be
compared to those presented by the non-modified organism from which it is
derived and its use under the same conditions;
5.2.1.4 The RA shall be carried out case-by-case and on the basis of transformation event.
The required information may vary in nature and level of detail from case to case
depending on the regulated article concerned, its intended use and the receiving
environment; and,
5.2.1.5 If new information on the regulated article and its effects on human health and the
environment becomes available, and such information is relevant and significant,
the RA shall be readdressed to determine whether the risk has changed or whether
there is a need to amend the risk management strategies accordingly.
5.2.2 Risk Assessment Guidelines. - The conduct of RA by concerned departments and

agencies shall be in accordance with the policies and standards on RA issued by the NCBP.
Annex III of the Cartagena Protocol shall also guide RA. As appropriate, such department
and agencies may issue their own respective administrative issuances establishing the
appropriate RA under their particular jurisdictions.
5.3 Role of Environmental Impact Assessment. - The application of the EIA System to
biosafety decisions shall be determined by concerned departments and agencies
subject to the requirements of law and the standards set by the NCBP. Where
applicable and under the coordination of the NCBP, concerned departments and agencies
shall issue joint guidelines on the matter. (Emphasis supplied)
Considering the above minimum requirements under the most comprehensive national
biosafety regulation to date, compliance by the petitioners with DAO 08-2002 is not
sufficient. Notably, Section 7 of the NBF mandates a more transparent, meaningful and
participatory public consultation on the conduct of field trials beyond the posting and
publication of notices and information sheets, consultations with some residents and
government officials, and submission of written comments, provided in DAO 08-2002.
SECTION 7. PUBLIC PARTICIPATION
The concerned government departments and agencies, in developing and adopting biosafety
policies, guidelines and measures and in making biosafety decisions, shall promote,
facilitate, and conduct public awareness, education, meaningful, responsible and
accountable participation. They shall incorporate into their respective administrative
issuances and processes best practices and mechanisms on public participation in
accordance with the following guidelines:chanRoblesvirtualLawlibrary
7.1 Scope of Public Participation. - Public participation shall apply to all stages of the
biosafety decision-making process from the time the application is received. For
applications on biotechnology activities related to research and development, limited
primarily for contained use, notice of the filing of such application with the NCBP shall be
sufficient, unless the NCBP deems that public interest and welfare requires otherwise.
7.2 Minimum Requirements of Public Participation. - In conducting public participation

processes, the following minimum requirements shall be
followed:chanRoblesvirtualLawlibrary
7.2.1 Notice to all concerned stakeholders, in a language understood by them and through
media to which they have access. Such notice must be adequate, timely, and effective and
posted prominently in public places in the areas affected, and in the case of commercial
releases, in the national print media; in all cases, such notices must be posted electronically
in the internet;
7.2.2 Adequate and reasonable time frames for public participation procedures. Such
procedures should allow relevant stakeholders to understand and analyze the benefits and
risks, consult with independent experts, and make timely interventions. Concerned
departments and agencies shall include in their appropriate rules and regulations specific
time frames for their respective public participation processes, including setting a minimum
time frame as may be appropriate;
7.2.3 Public consultations, as a way to secure wide input into the decisions that are to be
made. These could include formal hearings in certain cases, or solicitation of public
comments, particularly where there is public controversy about the proposed activities.
Public consultations shall encourage exchanges of information between applicants and the
public before the application is acted upon. Dialogue and consensus-building among all
stakeholders shall be encouraged. Concerned departments and agencies shall specify in
their appropriate rules and regulations the stages when public consultations are appropriate,
the specific time frames for such consultations, and the circumstances when formal hearings
will be required, including guidelines to ensure orderly proceedings. The networks of
agricultural and fisheries councils, indigenous peoples and community-based
organizations in affected areas shall be utilized;
7.2.4 Written submissions. Procedures for public participation shall include mechanisms
that allow public participation in writing or through public hearings, as
appropriate, and which allow the submission of any positions, comments,
information, analyses or opinions. Concerned departments and agencies shall include in
their appropriate rules and regulations the stages when and the process to be followed for
submitting written comments; and,
7.2.5 Consideration of public concerns in the decision-making phase following consultation
and submission of written comments. Public concerns as reflected through the procedures
for public participation shall be considered in making the decision. The public shall be
informed of the final decision promptly, have access to the decision, and shall be provided
with the reasons and considerations resulting in the decision, upon request.
We find that petitioners simply adhered to the procedures laid down by DAO 08-2002 and
no real effort was made to operationalize the principles of the NBF in the conduct of field
testing of Bt talong. The failure of DAO 08-2002 to accommodate the NBF means that the
Department of Agriculture lacks mechanisms to mandate applicants to comply with
international biosafety protocols. Greenpeace's claim that BPI had approved nearly all of the
applications for GMO field trials is confirmed by the data posted on their website. For these
reasons, the DAO 08-2002 should be declared invalid.
Significantly, while petitioners repeatedly argued that the subject field trials are not covered
by the EIS law, EO 514 clearly mandates that concerned departments and agencies, most
particularly petitioners DENR-EMB, BPI and FPA, make a determination whether the EIS
system should apply to the release of GMOs into the environment and issue joint guidelines
on the matter.
The Philippine EIS System (PEISS) is concerned primarily with assessing the direct and
indirect impacts of a project on the biophysical and human environment and ensuring that
these impacts are addressed by appropriate environmental protection and enhancement
measures. It "aids proponents in incorporating environmental considerations in planning
their projects as well as in determining the environment's impact on their project." There
are six stages in the regular EIA process. The proponent initiates the first three stages while
the EMB takes the lead in the last three stages. Public participation is enlisted in most
stages.136
Even without the issuance of EO 514, GMO field testing should have at least been
considered for EIA under existing regulations of petitioner EMB on new and emerging
technologies, to wit:
g) Group V (Unclassified Projects): These are the projects not listed in any of the groups,
e.g. projects using new processes/technologies with uncertain impacts. This is an
interim category - unclassified projects will eventually be classified into their appropriate
groups after EMB evaluation.137 (Emphasis supplied)
All government agencies as well as private corporations, firms and entities who intend to
undertake activities or projects which will affect the quality of the environment are required
to prepare a detailed Environmental Impact Statement (EIS) prior to undertaking such
development activity.138 An environmentally critical project (ECP) is considered by the EMB
as "likely to have significant adverse impact that may be sensitive, irreversible and diverse"
and which "include activities that have significant environmental consequences." 139 In this
context, and given the overwhelming scientific attention worldwide on the potential hazards
of GMOs to human health and the environment, their release into the environment through
field testing would definitely fall under the category of ECP.
During the hearing at the CA, Arty. Segui of the EMB was evasive in answering questions on
whether his office undertook the necessary evaluation on the possible environmental impact
of Bt talong field trials subject of this case and the release of GMOs into the environment in
general. While he initially cited lack of budget and competence as reasons for their inaction,
he later said that an amendment of the law should be made since projects involving GMOs
are not covered by Proclamation No. 2146140. Pertinent portions of his testimony before the
CA are herein quoted:
xxxx
ATTY. SORIANO:chanRoblesvirtualLawlibrary
Let us go back Mr. Witness to your answer in Question No. 5 regarding the list under the
PEISS law. Granting Mr. Witness that a certain project or undertaking is not classified as
environmentally critical project, how would you know that the BT talong field testing is not
located in an environmentally critical area this time?
ATTY. ACANTILADO:chanRoblesvirtualLawlibrary
Objection Your Honor, argumentative.
HON. J. DICDICAN:chanRoblesvirtualLawlibrary
Witness may answer.
ATTY. SEGUI:chanRoblesvirtualLawlibrary
As far as my recollection can serve me, in a reading of the Petition itself, somewhere along
the Petition, petitioners never alleged that the project, the subject matter rather of this
instant petition, is within an environmentally critical project.
Your Honor the Witness did not answer the question.
Please answer the question.
Personally I have conferred with our personnel from the Environmental Impact Assessment
Division and they intimated to me that the locations of the project, rather of this subject
matter of the instant petition, not within any declared environmentally critical area.
HON. J. BARRIOS:chanRoblesvirtualLawlibrary
In other words, you are aware of the area where the BT Talong experiments are being
conducted. Is that the premise?
Judging from previous discussions we had . . . judging from the Petition, and showing it to
the as I said personnel from Environmental Impact Division at our office, as I said they
intimated to me that it's not within declared environmentally critical area.
That being the case, you did not act further? [You] did not make any further
evaluation, on whether the activity has an environmental impact? Is that the correct
premise?
Well Your Honors I may be the Chief of the Legal Division of the EMB, I handle more of the
legal aspects of the Bureau's affairs. But when it comes to highly technical matters, I have
to rely on our technical people especially on environmentally impact assessment matters.
I will just ask him another question Your Honors. So did the Department of Agriculture Mr.
Witness coordinate with your Office with regard the field testing of BT Talong?
I'm sorry Your Honors I am not privy to that personally.
Mr. Witness, the question is did the Department of Agriculture coordinate with your Office
with regard the field testing of BT Talong as required under the law?
Already answered your Honor, objection.
The witness in effect said he does not know, he's not in a position to answer.
xxxx
Did the EMB Mr. Witness perform such evaluation in the case of BT Talong field testing?
ATTY. ACANTILADO:chanRoblesvirtualLawlibrary
Your Honor that is speculative, the witness has just answered a while ago that the EMB has
not yet received any project with respect to that Your Honor. So the witness would not be in
a position to answer that Your Honors.
Lay the basis first.
The earlier answer Your Honor of the witness is in general terms. My second question, my
follow-up question is specifically Your Honor theBT talong field testing.
Well from where I sit Your Honors, it would appear that it could be categorized as
unclassified...
HON. J. VALENZUELA:chanRoblesvirtualLawlibrary
Unclassified?
As the section will initially provide. But there must be prior ... may I continue to harp on
that Your Honors. There must be prior ... let's say conditions ... there must be prior
evaluation and assessment just the same by the EMB.
Prior to what Mr. Witness?
We will categorize it as unclassified but there must be ... (interrupted)
So initially you call it unclassified and then you say prior to...
I'm sorry Your Honors, may I reform.
Yes please.
Initially they will be considered/categorized as unclassified but there will be hopefully a

subsequent evaluation or assessment of the matter to see if we also have the resources and
expertise if it can be finally unclassified. I should say should fall within the fairview of the
system, the EIA system. In other words, it's in a sort of how do you say that it's in a state
of limbo. So it's unclassified, that's the most we can do in the meantime.
And Mr. Witness you also said that the agency the EMB is without the capability to evaluate
the projects such as this one in particular?
Yes, Your Honors as of now.
So therefore, when you say initially it's unclassified and then you're saying
afterwards the EMB needs evaluation but then you're saying the EMB is without
any capability to evaluate then what happens?
Well Your Honors, I did not draft the regulation myself. As the Chief of the Legal of the
EMB that's how we interpret it. But the truth of the matter is with all pragmatism
we don't have the resources as of now and expertise to do just that.
So in other words you admit that the EMB is without any competence to make a
categorical or initial examination of this uncategorized activity, is that what you
mean?
It would appear, yes.
What do you think would prompt your office to make such initial examination?
Well executive fee at the usual dictates ... the Secretary of the DENR probably even by
request of the parties concerned.
So that means you are waiting for a request? Are you not? Proactive in this activity in
performing your obligations and duties?
Well Your Honors, the national budget if I may ... I attend budget hearings myself. The
budget for the environment is hardly ... the ratio is ... if we want to protect indeed
the environment as we profess, with all due respect if Congress speaks otherwise.
May I interrupt, can we go into specifics. From what I have read so far, under No. 2 of your
Judicial Affidavit, [you] are saying that the EMB is tasked in advising the DENR on matters
related to environmental management, conservation and pollution control, right?
Yes.
Thereafter you stated that you are tasked mainly with PD 1586 which refers to
Environmental Critical Areas of Projects and more specifically focused on Proclamation No.
2146. With respect to this BT Talong, you mentioned that this is at first is uncategorized, it's
not within?
It's not within Proclamation 2146 Your Honor.
But you did mention that under the rules and regulations, even in an uncategorized activity,
pertaining to the environment, your Office has the mandate and then you later say that
your Office is without competence, do I follow your line of standing?
Yes, precisely it will be categorized as per section 7 as unclassified because it doesn't fall as
of now within Proclamation 2146.
Yes, but under the implementing rules your Office has the mandate to act on other
unclassified activities and you answered that your Office has no competence.
Proclamation 2146 executed by then Pres. Marcos, the IRR pointed to was executed by I
believe the Secretary of DENR. We need an amendment of 2146. 141 (Emphasis supplied)
The foregoing stance of the EMB's Chief of the Legal Division is an indication of the DENR-
EMB's lack of serious attention to their mandate under the law in the implementation of the
NBF, as provided in the following sections of EO 514:
4.9 Mandate of the Department of Environment and Natural Resources. - As the
primary government agency responsible for the conservation, management, development
and proper use of the country's environment and natural resources, the Department of
Environment and Natural Resources (DENR) shall ensure that environmental
assessments are done and impacts identified in biosafety decisions. It shall also
take the lead in evaluating and monitoring regulated articles intended for bioremediation,
the improvement of forest genetic resources, and wildlife genetic resources.
xxxx
4.12 Focal Point and Competent National Authorities.
4.12.1 For purposes of Article 19 of the Cartagena Protocol on Biosafety, the national focal
point responsible for liaison with the Secretariat shall be the Department of Foreign Affairs.
The competent national authorities, responsible for performing the administrative functions
required by the Protocol, shall be, depending on the particular genetically modified
organisms in question, the following:chanRoblesvirtualLawlibrary
xxxx
4.12.1.4 The Department of Environment and Natural Resources, for biosafety decisions
covered by the Protocol that concernregulated organisms intended for bioremediation,
the improvement of forest genetic resources, and wildlife genetic resources,
andapplications of modern biotechnology with potential impact on the
conservation and sustainable use of biodiversity. (Emphasis supplied)
On the supposed absence of budget mentioned by Atty. Segui, EO 514 itself directed the
concerned agencies to ensure that there will be funding for the implementation of the NBF
as it was intended to be a multi-disciplinary effort involving the different government
departments and agencies.
SEC. 6. Funding. - The DOST, DENR, DA, and DOH shall allocate funds from their present
budgets to implement the NBF, including support to the operations of the NCBP and its
Secretariat. Starting 2006 and thereafter, the funding requirements shall be included in the
General Appropriations Bill submitted by each of said departments to Congress.
These concerned departments shall enter into agreement on the sharing of financial and
technical resources to support the NCBP and its Secretariat.
All told, petitioners government agencies clearly failed to fulfil their mandates in the
implementation of the NBF.
Application of the Precautionary Principle
The precautionary principle originated in Germany in the 1960s, expressing the normative
idea that governments are obligated to "foresee and forestall" harm to the environment. In
the following decades, the precautionary principle has served as the normative guideline for
policymaking by many national governments.142 The Rio Declaration on Environment and
Development, the outcome of the 1992 United Nations Conference on Environment and
Development held in Rio de Janeiro, defines the rights of the people to be involved in the
development of their economies, and the responsibilities of human beings to safeguard the
common environment. It states that the long term economic progress is only ensured if it is
linked with the protection of the environment.143 For the first time, the precautionary
approach was codified under Principle 15, which reads:
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.
Principle 15 codified for the first time at the global level the precautionary approach, which
indicates that lack of scientific certainty is no reason to postpone action to avoid potentially
serious or irreversible harm to the environment. It has been incorporated in various
international legal instruments.144 The Cartagena Protocol on Biosafety to the Convention on
Biological Diversity, finalized and adopted in Montreal on January 29, 2000, establishes an
international regime primarily aimed at regulating trade in GMOs intended for release into
the environment, in accordance with Principle 15 of the Rio Declaration on Environment and
Development. The Protocol thus provides:
Article
10
DECISION PROCEDURE
xxxx
6. Lack of scientific certainty due to insufficient relevant scientific information and

knowledge regarding the extent of the potential adverse effects of a living modified
organism on the conservation and sustainable use of biological diversity in the Party of
import, taking also into account risks to human health, shall not prevent that Party from
taking a decision, as appropriate, with regard to the import of the living modified organism
in question as referred to in paragraph 3 above, in order to avoid or minimize such potential
adverse effects.
xxxx
Article
11
PROCEDURE FOR LIVING MODIFIED ORGANISMS
INTENDED FOR DIRECT USE AS FOOD OR FEED,
OR FOR PROCESSING
8. Lack of scientific certainty due to insufficient relevant scientific information and

knowledge regarding the extent of the potential adverse effects of a living modified
organism on the conservation and sustainable use of biological diversity in the Party of
import, taking also into account risks to human health, shall not prevent that Party from
taking a decision, as appropriate, with regard to the import of that living modified organism
intended for direct use as food or feed, or for processing, in order to avoid or minimize such
potential adverse effects.
xxxx
Annex III
RISK ASSESSMENT
General principles
xxxx
4. Lack of scientific knowledge or scientific consensus should not necessarily be interpreted

as indicating a particular level of risk, an absence of risk, or an acceptable risk.
The precautionary principle applies when the following conditions are met 145:
there exist considerable scientific uncertainties;
there exist scenarios (or models) of possible harm that are scientifically reasonable
(that is based on some scientifically plausible reasoning);
uncertainties cannot be reduced in the short term without at the same time
increasing ignorance of other relevant factors by higher levels of abstraction and
idealization;
the potential harm is sufficiently serious or even irreversible for present or future
generations or otherwise morally unacceptable;
there is a need to act now, since effective counteraction later will be made
significantly more difficult or costly at any later time.
The Rules likewise incorporated the principle in Part V, Rule 20, which states:
PRECAUTIONARY PRINCIPLE
SEC. 1. Applicability. - When there is a lack of full scientific certainty in establishing a causal
link between human activity and environmental effect, the court shall apply the
precautionary principle in resolving the case before it.
The constitutional right of the people to a balanced and healthful ecology shall be given the
benefit of the doubt.
SEC. 2. Standards for application. - In applying the precautionary principle, the following
factors, among others, may be considered: (1) threats to human life or health; (2) inequity
to present or future generations; or (3) prejudice to the environment without legal
consideration of the environmental rights of those affected.
Under this Rule, the precautionary principle finds direct application in the evaluation of
evidence in cases before the courts. The precautionary principle bridges the gap in cases
where scientific certainty in factual findings cannot be achieved. By applying the
precautionary principle, the court may construe a set of facts as warranting either judicial
action or inaction, with the goal of preserving and protecting the environment. This may be
further evinced from the second paragraph where bias is created in favor of the
constitutional right of the people to a balanced and healthful ecology. In effect, the
precautionary principle shifts the burden of evidence of harm away from those likely to
suffer harm and onto those desiring to change the status quo. An application of the
precautionary principle to the rules on evidence will enable courts to tackle future
environmental problems before ironclad scientific consensus emerges. 146
For purposes of evidence, the precautionary principle should be treated as a principle of last
resort, where application of the regular Rules of Evidence would cause in an inequitable
result for the environmental plaintiff
(a) settings in which the risks of harm are uncertain; (b) settings in which harm might be
irreversible and what is lost is irreplaceable; and (c) settings in which the harm that might
result would be serious. When these features
uncertainty, the possibility of irreversible harm, and the possibility of serious

harm coincide, the case for the precautionary principle is strongest. When in doubt,
cases must be resolved in favor of the constitutional right to a balanced and healthful
ecology. Parenthetically, judicial adjudication is one of the strongest fora in which the
precautionary principle may find applicability.147
Assessing the evidence on record, as well as the current state of GMO research worldwide,
the Court finds all the three conditions present in this case - uncertainty, the possibility of
irreversible harm and the possibility of serious harm.
Eggplants (talong) are a staple vegetable in the country and grown by small-scale farmers,
majority of whom are poor and marginalized. While the goal of increasing crop yields to
raise farm incomes is laudable, independent scientific studies revealed uncertainties due to
unfulfilled economic benefits fromBt crops and plants, adverse effects on the environment
associated with use of GE technology in agriculture, and serious health hazards from
consumption of GM foods. For a biodiversity-rich country like the Philippines, the natural
and unforeseen consequences of contamination and genetic pollution would be disastrous
and irreversible.
Alongside the aforesaid uncertainties, the non-implementation of the NBF in the crucial
stages of risk assessment and public consultation, including the determination of the
applicability of the EIS requirements to GMO field testing, are compelling reasons for the
application of the precautionary principle. There exists a preponderance of evidence that the
release of GMOs into the environment threatens to damage our ecosystems and not just the
field trial sites, and eventually the health of our people once the Bt eggplants are consumed
as food. Adopting the precautionary approach, the Court rules that the principles of the NBF
need to be operationalized first by the coordinated actions of the concerned departments
and agencies before allowing the release into the environment of genetically modified
eggplant. The more prudent course is to immediately enjoin the Bt talong field trials and
approval for its propagation or commercialization until the said government offices shall
have performed their respective mandates to implement the NBF.
We have found the experience of India in the Bt brinjal field trials - for which an indefinite
moratorium was recommended by a Supreme Court-appointed committee till the
government fixes regulatory and safety aspects - as relevant because majority of Filipino
farmers are also small-scale farmers. Further, the precautionary approach entailed inputs
from all stakeholders, including the marginalized farmers, not just the scientific community.
This proceeds from the realization that acceptance of uncertainty is not only a scientific
issue, but is related to public policy and involves an ethical dimension. 148 For scientific
research alone will not resolve all the problems, but participation of different stakeholders
from scientists to industry, NGOs, farmers and the public will provide a needed variety of
perspective foci, and knowledge.149
Finally, while the drafters of the NBF saw the need for a law to specifically address the
concern for biosafety arising from the use of modern biotechnology, which is deemed
necessary to provide more permanent rules, institutions, and funding to adequately deal
with this challenge,150 the matter is within the exclusive prerogative of the legislative
branch.
WHEREFORE, the petitions are DENIED. The Decision dated May 17, 2013 of the Court of
Appeals in CA-G.R. SP No. 00013 is hereby MODIFIED, as
follows:chanRoblesvirtualLawlibrary
1. The conduct of the assailed field testing for Bt talong is hereby PERMANENTLY
ENJOINED;
2. Department of Agriculture Administrative Order No. 08, series of 2002 is declared NULL
AND VOID; and
3. Consequently, any application for contained use, field testing, propagation and
commercialization, and importation of genetically modified organisms isTEMPORARILY
ENJOINED until a new administrative order is promulgated in accordance with law.
No pronouncement as to costs.
SO ORDERED.chanroblesvirtuallawlibrary
G.R. No. 194239 June 16, 2015
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.
DECISION
VELASCO, JR., J.:
Nature of the Case
Before the Court is the Petition for the Issuance of a Writ of Kalikasan filed following the leak in the oil
pipeline owned by First Philippine Industrial Corporation (FPIC) in Makati City. The Facts
Respondent FPI C operates two pipelines since 1969, viz: ( 1) the White Oil Pipeline (WOPL) System,
which covers a 117-kilometer stretch from Batangas to the Pandacan Terminal in Manila and transports
diesel, gasoline, jet fuel and kerosene; and (b) the Black Oil Pipeline (BOPL) System which extends 105
kilometers and transports bunker fuel from Batangas to a depot in Sucat, Paraaque. These systems
transport nearly 60% of the petroleum requirements of Metro Manila and parts of the provinces of
Bulacan, Laguna, and Rizal.
The two pipelines were supposedly designed to provide more than double the standard safety allowance
against leakage, considering that they are made out of heavy duty steel that can withstand more than
twice the current operating pressure and are buried at a minimum depth of 1.5 meters, which is deeper
than the US Department of Transportation standard of 0.9 meters. In May 2010, however, a leakage from
one of the pipelines was suspected after the residents of West Tower Condominium (West Tower) started
to smell gas within the condominium. A search made on July 10, 2010 within the condominium premises
led to the discovery of a fuel leak from the wall of its Basement 2. Owing to its inability to control the flow,
West Tower's management reported the matter to the Police Department of Makati City, which in turn
called the city's Bureau of Fire Protection.
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.
On November 15, 2010, West Tower Condominium Corporation (West Tower Corp.) interposed the
present Petition for the Issuance of a Writ of Kalikasan on behalf of the residents of West Tower and in
representation of the surrounding communities in Barangay Bangkal, Makati City. West Tower Corp. also
alleged that it is joined by the civil society and several people's organizations, non-governmental
organizations and public interest groups who have expressed their intent to join the suit because of the
magnitude of the environmental issues involved.1
In their petition, petitioners prayed that respondents FPIC and its board of directors and officers, and First
Gen Corporation (FGC) and its board of directors and officers be directed to: (1) permanently cease and
desist from committing acts of negligence in the performance of their functions as a common carrier; (2)
continue to check the structural integrity of the whole 117-kilometer pipeline and to replace the same; (3)
make periodic reports on their findings with regard to the 117-kilometer pipeline and their replacement of
the same; (4) rehabilitate and restore the environment, especially Barangay Bangkal and West Tower, at
least to what it was before the signs of the leak became manifest; and (5) to open a special trust fund to
answer for similar and future contingencies in the future. Furthermore, petitioners pray that respondents
be prohibited from opening the pipeline and allowing the use thereof until the same has been thoroughly
checked and replaced, and be temporarily restrained from operating the pipeline until the final resolution
of the case.
To bolster their petition, petitioners argued that FPIC's omission or failure to timely replace. its pipelines
and to observe extraordinary diligence caused the petroleum spill in the City of Makati. Thus, for
petitioners, the continued use of the now 4 7-year old pipeline would not only be a hazard or a threat to
the lives, health, and property of those who live or sojourn in all the municipalities in which the pipeline is
laid, but would also affect the rights of the generations yet unborn to live in a balanced and "healthful
ecology," guaranteed under Section 16, Article II of the 1987 Constitution.
On November 19, 2010, the Court issued the Writ of Kalikasan2 with a Temporary Environmental
Protection Order (TEPO) requiring respondents FPIC, FGC, and the members of their Boards of Directors
to file their respective verified returns. The TEPO enjoined FPIC and FGC to: (a) cease and desist from
operating the WOPL until further orders; (b) check the structural integrity of the whole span of the 11 7-
kilometer WOPL while implementing sufficient measures to prevent and avert any untoward incident that
may result from any leak of the pipeline; and ( c) make a report thereon within 60 days from receipt
thereof.
In compliance with the writ, FPIC directors Edgar Chua, Dennis Javier, Dennis Gamab and Willie
Sarmiento submitted a Joint Return3 praying for the dismissal of the petition and the denial of the privilege
of the Writ of Kalikasan. They alleged that: petitioners had no legal capacity to institute the petition; there
is no allegation that the environmental damage affected the inhabitants of two (2) or more cities or
provinces; and the continued operation of the pipeline should be allowed in the interest of maintaining
adequate petroleum supply to the public.
Respondents FPIC and its directors and officers, other than the aforementioned four ( 4) directors, also
filed a Verified Return4 claiming that not all requirements for the issuance of the Writ of Kalikasan are
present and there is no showing that West Tower Corp. was authorized by all those it claimed to
represent. They further averred that the petition contains no allegation that respondents FPIC directors
and officers acted in such a manner as to allow the piercing of the corporate veil.
Meanwhile, on January 18, 201-1, FGC and the members of its Board of Directors and Officers filed a
Joint Compliance5 submitting the report required by the Writ of Kalikasan/TEPO. They contended that
they neither own nor operate the pipelines, adding that it is impossible for them to report on the structural
integrity of the pipelines, much less to cease and desist from operating them as they have no capability,
power, control or responsibility over the pipelines. They, thus, prayed that the directives of the Writ of
Kalikasan/TEPO be considered as sufficiently performed, as to them.
On January 21, 2011, FPIC, in compliance with the writ, submitted its 4-page "Report on Pipeline Integrity
Check and Preventive Maintenance Program."6 In gist, FPIC reported the following: (I) For the structural
integrity of the 117-kilometer pipeline, (a) the DOE engaged the services of UP-NIGS to do borehole
testing on 81 pre-identified critical areas of the WQPL in eight cities and municipalities-all the boreholes
showed negative presence of petroleum vapors; (b) pressure tests were conducted after the repair of the
leak and results showed negative leaks and the DOE's pipeline expert, Societe General de Surveillance,
New Zealand, has developed a pressure test protocol requiring a 24-hour operation of running a scraper
pig through the pipeline to eliminate air gap; (c) In-Line Inspection Test, was conducted by NDT through
MFL and ultrasonic. The NDT later cleared the WOPL from any damage or corrosion.
(II) For preventive maintenance measures, (a) Cathodic Protection Systems are installed involving the
use of anode materials and the introduction of electric current in the pipeline to enhance prevention of
corrosion; (b) Regular Scraper Runs through the pipeline to maintain cleanliness and integrity of the
pipelines' internal surface; (c) Daily Patrols every two hours of the pipeline route to deter unauthorized
diggings in the vicinity of the pipeline segments; ( d) Regular coordination meetings with DPWH, MMDA
and utility companies to monitor projects that might involve digging or excavation in the vicinity of the
pipeline segments; (e) Installation of Security Warning Signs along the pipeline route with toll free number
which can be called in the event of an accident or emergency; (f) Emergency Response Procedure of the
ERT is activated by a call-out procedure; (g) Maintenance of Emergency Equipment and Repair Kit which
are always on standby; and, (h) Remotely controlled Isolation Valves are in place to shut the pipeline
when necessary.
On February 9, 2011, petitioners filed, and the Court eventually granted, their Motion to Set the Case for
Preliminary Conference and Hearing7 pursuant to Sec. 11, Rule 7 of the Rules of Procedure for
Environmental Cases.
On April 15, 2011, the Court conducted an ocular inspection of the WOPL in the vicinity of West Tower to
determine the veracity of the claim that there were two (2) additional leaks on FPIC's pipeline. Results of
the ocular inspection belied the claim.
In the meantime, petitioners also filed civil and criminal complaints against respondents arising from the
same incident or leakage from the WOPL.8
Since after the Court's issuance of the Writ of Kalikasan and the TEPO on November 19, 2010, FPIC has
ceased operations on both the WOPL and the BOPL. On May 31, 2011, however, the Court, answering a
query of the DOE, clarified and confirmed that what is covered by the Writ of Kalikasan and TEPO is only
the WOPL System of FPIC; thus, FPIC can resume operation of its BOPL System.9
On July 7, 2011, petitioners filed an Omnibus Motion10 assailing the Court's May 31, 2011 Resolution,
praying for the conduct of oral argument on the issue of reopening the BOPL System. This was followed,
on September 9, 2011, by a Manifestation (Re: Current Developments) with Omnibus Motion 11 wherein
petitioners invoked the precautionary principle12 and asserted that the possibility of a leak in the BOPL
System leading to catastrophic environmental damage is enough reason to order the closure of its
operation. They likewise alleged that the entities contracted by FPIC to clean and remediate the
environment are illegally discharging waste water, which had not undergone proper treatment, into the
Paraaque River. Petitioners, thus, prayed that respondents be directed to comply with environmental
laws in rehabilitating the surroundings affected by the oil leak and to submit a copy of their work plan and
monthly reports on the progress thereof. To these omnibus motions, respondents were directed to file
their respective comments.
On September 28, 2011, respondent FPIC filed an Urgent Motion for Leave (To Undertake "Bangkal
Realignment" Project)13 in order to reduce stress on the WOPL System. FPIC sought to construct a new
realigned segment to replace the old pipe segment under the Magallanes Interchange, which covers the
portion that leaked. Petitioners were directed to file their comment on FPIC's motion.
Report and Recommendation of the Court of Appeals
To expedite the resolution of the controversy, the Court remanded the case to the Court of Appeals (CA).
By this Court's Resolution dated November 22, 2011,14 the appellate court was required to conduct
hearings and, thereafter, submit a report and recommendation within 30 days after the receipt of the
parties' memoranda.
On March 21, 2012, the preliminary conference was continued before the CA wherein the parties made
admissions and stipulations of facts and defined the issues for resolution. In view of the technical nature
of the case, the CA also appointed15 several amici curiae,16 but only four (4) filed their reports.17
On December 26, 2012, the CA Former 11th Division submitted to the Court its well-crafted and
exhaustive 156-page Report and Recommendation18 dated December 21, 2012 (CA Report). Some
highlights of the Report:
1. Anent petitioners' June 28, 2011 Omnibus Motion assailing the reopening of the BOPL System,
the CA directed respondent FPIC to submit the appropriate certification from the DOE as to the
safe commercial operation of the BOPL; otherwise, the operation of the BOPL must also be
enjoined.
2. On petitioners' September 9, 2011 Manifestation (Re: Current Developments) with Omnibus

Motion, the CA directed the Inter-Agency Committee on Health to submit its evaluation of the
remediation plan prepared by CH2M Hill Philippines, Inc. for FPIC. Further, the appellate court
directed FPIC to strictly comply with the stipulations contained in the permits issued by the
Department of Environment and Natural Resources (DENR) for its remediation activities in
Barangay Bangkal, Makati City. The DENR was in turn directed by the CA to:
(a) monitor compliance by respondent FPIC with applicable environmental laws and
regulations and conditions set forth in the permits issued;
(b) conduct independent analysis of end-products of the Multi-Phase Extraction System;
(c) conduct regular consultative meetings with the City of Makati, residents of Barangay
Bangkal and other stakeholders concerning the remediation activities; and,
(d) evaluate the viability of the recommendation of amicus Dr. Benjamin R. De Jesus, Jr.
to include the use of surfactants and oxygen-releasing compounds (ORCs) in the middle
and terminal portions of the remediation plan.
3. Respondent's September 27, 2011 Urgent Motion for Leave (To Undertake "Bangkal
Realignment" Project) was denied.
4. With regard to the March 29, 2012 Supplemental Manifestation (Re: List of Amici Curiae and
Recent Possible Leak in the Pipeline) filed by petitioners, the CA found that the existence of
another possible leak alleged by petitioners was not established. Nonetheless, to prevent such
event, the CA ordered FPIC to: (i) review, adopt and strictly observe appropriate safety and
precautionary measures; (ii) closely monitor the conduct of its maintenance and repair works; and
(iii) submit to the DOE regular monthly reports on the structural integrity and safe commercial
operation of the pipeline.
5. As to the merits of the case, the CA submitted the following recommendations:

(a) That the people's organizations, non-governmental organizations, and public interest
groups that indicated their intention to join the petition and submitted proof of juridical
personality (namely: the Catholic Bishop's Conference of the Philippines; Kilusang
Makabansang Ekonomiya, Inc.; Women's Business Council of the Philippines, Inc.;
Junior Chambers International Philippines, Inc. - San Juan Chapter; Zonta Club of Makati
Ayala Foundations; and the Consolidated Mansions Condominium Corporation) be
allowed to be formally impleaded as petitioners.
(b) That respondent FPIC be ordered to submit a certification from the DOE Secretary
that the WOPL is already safe for commercial operation. The certification should take into
consideration the adoption by FPIC of the appropriate leak detection system to be used
in monitoring the entire pipeline's mass input versus mass output. The certification must
also consider the necessity of replacing the pipes with existing patches and sleeves. In
case of failure of respondent FPIC to submit the required certification from the DOE
Secretary within sixty (60) days from notice of the Honorable Supreme Court's approval
of this recommendation, the TEPO must be made permanent.
(c) That petitioners' prayer for the creation of a special trust fund to answer for similar
contingencies in the future be denied for lack of sufficient basis.
d) That respondent FGC be not held solidarily liable under the TEPO.
(e) That without prejudice to the outcome of the civil and criminal cases filed against
respondents, the individual directors and officers of FPIC and FGC be not held liable in
their individual capacities.
On January 11, 2013, petitioners filed their Motion for Partial Reconsideration 19 of the CA's Report
praying that (a) instead of the DOE, the required certification should be issued by the DOST-Metal
Industry Research and Development Center; (b) a trust fund be created to answer for future
contingencies; and ( c) the directors and officers of FPIC and FGC be held accountable.
On January 25, 2013, FPIC filed its Compliance (Re: Department of Energy Certification on the Black Oil
Pipeline)20 and submitted the required DOE Certification21 issued on January 22, 2013 by DOE Secretary
Carlos Jericho L. Petilla (Secretary Petilla). On March 14, 2013, petitioners countered with a
Manifestation with Motion22asserting that FPIC's certification is not compliant with the CA's requirement.
Hence, petitioners moved that the certification should be disregarded, the 30-day period be deemed to
have lapsed, and FPIC be permanently enjoined from operating the BOPL.
On July 30, 2013, the Court issued a Resolution adopting the recommendation of the CA in its Report and
Recommendation that FPIC be ordered to secure a certification from the DOE Secretary before the
WOPL may resume its operations. The pertinent portion of said Resolution reads:
[FPIC] is hereby ORDERED to submit a certification from the DOE Secretary that the pipeline is already
safe for commercial operation. The certification should take into consideration the adoption by FPIC of the
appropriate leak detection system to be used in monitoring the entire pipeline's mass input versus mass
output. The certification must also consider the necessity of replacing the pipes with existing patches and
sleeves x x x.23
The DOE Secretary is DIRECTED to consult the [DOST] regarding the adoption of the appropriate leak
detection system and the necessity of replacing the pipes with existing patches and sleeves.
On October 2, 2013, petitioners, in a Motion for Reconsideration with Motion for Clarification, emphasized
that the CA found FPIC's tests and maintenance program to be insufficient and inconclusive to establish
the WOPL' s structural integrity for continued commercial operation.24 Furthermore, petitioners point out
that the DOE is biased and incapable of determining the WOPL's structural integrity.
Respondents, for their part, maintain that the DOE has the technical competence and expertise to assess
the structural integrity of the WOPL and to certify the system's safety for commercial
operation.25 Respondents further allege that the DOE is the agency empowered to regulate the
transportation and distribution of petroleum products, and to regulate and monitor downstream oil industry
activities, including "product distribution" through pipelines. 26
In compliance with the Court's July 30, 2013 Resolution, the DOE Secretary issued on October 25, 2013
a Certification,27 attesting that the WOPL is safe to resume commercial operations, subject to monitoring
or inspection requirements, and imposing several conditions that FPIC must comply with. The
Certification, in its entirety, reads:
This is to certify that based on the Pipeline Integrity Management Systems (PIMS) being implemented by
[FPIC] for its [WOPL] facility, the same is safe to resume commercial operations. This certification is being
issued after consultation with the [DOST] and on the basis of the following considerations, to wit:
1. DOE noted the adoption by FPIC of the appropriate leak detection system to be used in
monitoring the pipeline's mass input versus mass output, as well as the other measures of leak
detection and prevention adopted by the latter;
2. DOE further noted that FPIC has already undertaken realignment and reinforcement works on
the current pipeline to remove majority of the patches. FPIC has likewise presented substantial
and adequate documentation showing that the remaining patches and sleeves are safe, and that
the use of such is recognized by the industry and complies with existing standards;
3. DOE finally noted the results of various tests and inspections done on the pipeline as indicated
in the Manifestation submitted by ,the DOE on March 31, 2012, in the civil case docketed as CA
GR SP No. 00008 and entitled West Tower Condominium, et al. [v.] First Philippine Industrial
Corporation, et al.
This certification is being issued subject to the condition that FPIC will submit itself to regular monitoring
and validation by the Oil Industry Management Bureau (OIMB) of the implementation of its PIMS,
particularly on the following: (a) mass or volume input versus mass or volume output loss/gain
accounting; (b) results of borehole monitoring, (c) inspection of the pipeline cathodic protection and (d)
pressure test.
Further, FPIC shall submit itself to any test or inspection that the DOE and DOST may deem appropriate
for purposes of monitoring the operations of the WOPL facility.
The Court is fully cognizant of the WOPL' s value in commerce and the adverse effects of a prolonged
closure thereof. Nevertheless, there is a need to balance the necessity of the immediate reopening of the
WOPL with the more important need to ensure that it is sound for continued operation, since the
substances it carries pose a significant hazard to the surrounding population and to the environment. 28 A
cursory review of the most recent oil pipeline tragedies around the world will readily show that extreme
caution should be exercised in the monitoring and operation of these common carriers:
(1) On August 1, 2014, a series of powerful explosions from underground pipeline systems ripped
up the streets of Kaohsiung, Taiwan, killing at least 28 people and injuring 299 more. Further, 23
,600, 2,268 and 6,000 households were left without gas, power and water, respectively, in the 2-3
square kilometer blast area.29
(2) On November 22, 2013, an oil pipeline leaked, caught fire, and exploded in Qingdao,
Shangdao Province in China, killing 55 people and injuring more than a hundred more. 30
(3) On September 14, 2011, a fuel pipeline exploded in Kenya's capital city, Nairobi, reducing
bodies to dust and flattening homes. At least 7 5 people died in the explosion, while more than a
hundred people were injured.31
(4) In September 2010, a natural gas pipeline ruptured and set off a fireball, killing eight (8)
people and leveling 3 8 homes in San Bruno, California in the United States.32
(5) On July 30, 2004, a rupture of an underground natural gas pipeline buried six (6) meters in
Ghislenghien, Belgium resulted in 24 deaths and over 120 injuries.33
On April 29 and 30, 2014, the DOE organized a dialogue between said government agencies and the
FPIC. There it was stated that during the dialogue, "the division heads and a high profile team from FPIC,
both from operation and management made presentations and answered questions on pipeline pumping
operation and product delivery, and a detailed explanation of the FPIC PIMS' control measures, condition
monitoring measures, and emergency measures, as well as its various activities and projects
implemented since 2010 such as pipeline replacement and realignment in Pandacan and Bangkal,
inspection and reinforcement of all patches in the WOPL, inspection and reinforcement of a number of
reported dents in the WOPL, conduct of successful leak tests, and installation of boreholes that are gas-
tested on a weekly basis, and the safety systems that go with the daily pipeline operation and
maintenance and project execution."34
On August 5, 2014, Secretary Carlos Jericho L. Petilla of the DOE submitted a letter35 recommending
activities and timetable for the resumption of the WOPL operations, to wit:
A. Preparatory to the Test Run
I. FPIC Tasks:
a. Continue submission of monitoring charts, data/reading, accomplishment reports, and project

status for all related activities/works. Respond to comments and prepare for site inspection.
b. Continue gas testing along the right-of-way using the monitoring wells or boreholes. Prepare
for inspection of right-of-way and observation of gas testing activities on monitoring wells and
boreholes.
c. Expound on the selection of borehole location. For example, identify those located in pipeline
bends, bodies of water, residential areas, repaired portions of the pipelines, dents and welded
joints.
d. Continue submitting status report relating to "Project Mojica" (an ongoing pipeline segment
realignment activity undertaken by FPIC to give way to a flood control project of MMDA in the
vicinity of Mojica St. and Pres. Osmea Highway in Makati City). Prepare for site inspection.
II. Inter-agency undertaking:
a. Conduct onsite inspection of right-of-way
b. Review/check remaining 22 patches that were already inspected and reinforced with
Clockspring sleeves.
i. Determine location of sleeves.
ii. Review of procedures on repair of sleeves.
iii. Random visual inspection of areas easily accessible.
c. Cathodic protection's onsite inspection on rectifier to check readings
i. Old readings
ii. Current Readings
iii. Segment covered
iv. Criteria for prioritization for corrective action
d. Observe and witness the running/operation of the cleaning pig.
e. Check and validate all calibration certificate of instruments
i. Instrument verification and calibration.
B. Actual Test Run (to be undertaken both by FPIC and inter-agency)
a. Perform Cleaning Pig Run
i. Witness launching and receiving of the cleaning pig.
ii. Handling of the residuals after cleaning.
b. Demonstrate Various Pressure Tests (already being conducted by FPIC)
i. Blocked-in pressure test (Leak Test, not in operation)
ii. In-operation (hourly reading)
c. Continue Current Gas Monitoring (boreholes)
i. Ocular inspection of selected areas
d. Demonstrate mass or volume balance computation during WOPL test run (already being
implemented in the BOPL)
i. 30 days baseline data generation
ii. 30 days computational analysis and monitoring
C. Commissioning or Return to Commercial Operation
I. FPIC Tasks:
a. Continue implementation of the PIMS. Review recommendations from DOE.
b. Continue monthly reporting of operations and maintenance activities with DOE.
c. Continue reporting and coordination with DOE and other government agencies for
implementation of projects.36
Secretary Petilla also recounted to the Court in his August 5, 2014 letter that the DOE, together with the
DPWH and the Metropolitan Manila Development Authority (MMDA), observed the different milestones of
the realignment project being undertaken by FPIC in support of the MMDA Flood Control Project and
stated that the new line segment as laid was coated with corrosion protection prior to the backfilling of the
excavated portion.
On February 3, 2015, the Court required the parties to submit their comment on Sec. Petilla's letter within
ten (10) days from receipt of the Resolution. On various dates, respondents First Gen Corporation, FPIC,
and petitioner West Tower filed their respective comments37 in compliance with the Court's resolution.
The intervenors were unable to comply with the Court's directive; hence, they are deemed to have waived
their right to file their respective comments. The Issues
Having received the October 25, 2013 Certification and the August 5, 2014 Letter from the DOE on the
state of the WOPL, as well as the parties' comments thereon, the following issues defined by the parties
during the March 21, 2012 preliminary conference are now ripe for adjudication:
1. Whether petitioner West Tower Corp. has the legal capacity to represent the other petitioners
and whether the other petitioners, apart from the residents of West Tower and Barangay Bangkal,
are real parties-in-interest;
2. Whether a Permanent Environmental Protection Order should be issued to direct the

respondents to perform or to desist from performing acts in order to protect, preserve, and
rehabilitate the affected environment;
3. Whether a special trust fund should be opened by respondents to answer for future similar
contingencies; and
4. Whether FGC and the directors and officers of respondents FPIC and FGC may be held liable
under the environmental protection order.38
The Court's Ruling
We adopt, with modifications, the recommendations of the CA and discuss the foregoing issues in
seriatim.
I.
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.
Residents of West Tower and Barangay Bangkal
As defined, a real party-in-interest is the party who stands to be benefited or injured by the judgment in
the suit, or the party entitled to the avails of the suit.39 Generally, every action must be prosecuted or
defended in the name of the real parties-in-interest.40 In other words, the action must be brought by the
person who, by substantive law, possesses the right sought to be enforced. 41 Alternatively, one who has
no right or interest to protect cannot invoke the jurisdiction of the court as party-plaintiff-in-action for it is
jurisprudentially ordained that every action must be prosecuted or defended in the name of the real party-
in-interest.42
In the case at bar, there can be no quibble that the oil leak from the WOPL affected all the condominium
unit owners and residents of West Tower as, in fact, all had to evacuate their units at the wee hours in the
morning of July 23, 2010, when the condominium's electrical power was shut down. Until now, the unit
owners and residents of West Tower could still not return to their condominium units. Thus, there is no
gainsaying that the residents of West Tower are real parties-in-interest.
There can also be no denying that West Tower Corp. represents the common interest of its unit owners
and residents, and has the legal standing to file and pursue the instant petition. While a condominium
corporation has limited powers under RA 4 726, otherwise known as The Condominium Act,43 it is
empowered to pursue actions in behalf of its members. In the instant case, the condominium corporation
.is the management body of West Tower and deals with everything that may affect some or all of the
condominium unit owners or users.
It is of no moment that only five residents of West Tower signed their acquiescence to the filing of the
petition for the issuance of the Writ of Kalikasan, as the merits of such petition is, as aptly put by the CA,
not measured by the number of persons who signified their assent thereto, but on the existence of a
prima facie case of a massive environmental disaster.
Moreover, the fact that no board resolution was submitted by West Tower Corp. authorizing Manuel Dy
Chuaunsu, Jr. to sign the Verification and Certification of Non-forum Shopping is irrelevant. The records
show that petitioners submitted a notarized Secretary's Certificate44 attesting that the authority of
Chuaunsu to represent the condominium corporation in filing the petition is from the resolution of the total
membership of West Tower Corp. issued during their November 9, 2010 meeting with the requisite
quorum. It is, thus, clear that it was not the Board of West Tower Corp. which granted Chuaunsu the
authority but the full membership of the condominium corporation itself.
As to the residents of Barangay Bangkal, they are similarly situated with the unit owners and residents of
West Tower and are real parties-in-interest to the instant case, i.e., if they so wish to join the petitioners.
Organizations that indicated their intention to join the petition
and submitted proof of juridical personality
Anent the propriety of including the Catholic Bishops' Conference of the Philippines, Kilusang
Makabansang Ekonomiya, Inc., Women's Business Council of the Philippines, Inc., Junior Chambers
International Philippines, Inc. - San Juan Chapter, Zonta Club of Makati Ayala Foundations, and the
Consolidated Mansions Condominium Corporation, as petitioners in the case, the Court already granted
their intervention in the present controversy in the adverted July 30, 2013 Resolution.
This is so considering that the filing of a petition for the issuance of a writ of kalikasan under Sec. 1, Rule
745 of the Rules of Procedure for Environmental Cases does not require that a petitioner be directly
affected by an environmental disaster. The rule clearly allows juridical persons to file the petition on
behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened
with violation.
Thus, as parties to the case, they are entitled to be furnished copies of all the submissions to the Court,
including the periodic reports of FPIC and the results of the evaluations and tests conducted on the
WOPL.
Having disposed of the procedural issue, We proceed to the bone of contention in the pending motions.
Suffice it to state in the outset that as regards the substantive issues presented, the Court, likewise,
concurs with the other recommendations of the CA, with a few modifications.
II.
Propriety of Converting the TEPO to PEPO or its Lifting in light of the
DOE Certification of the WOPL's Commercial Viability
To recall, petitioners' persistent plea is for the conversion of the November 19, 2010 TEPO into a
Permanent Environmental Protection Order (PEPO) pursuant to Sec. 3, 46 Rule 5 of the Rules of
Procedure for Environmental Cases. For its part, respondent FPIC asserts that regular testing, as well as
the measures that are already in place, will sufficiently address any concern of oil leaks from the WOPL.
With respect to leak detection, FPIC claims that it has in place the following systems: (a) regular cleaning
scraper runs, which are done quarterly; (b) pipeline integrity gauge (PIG) tests/Intelligent PIG, now known
as in-line inspections (ILI), which is done every five years; (c) pressure monitoring valves; and ( d) 24-
hour patrols. Additionally, FPIC asserted that it also undertook the following: (a) monitoring of wells and
borehole testing/vapor tests; (b) leak tightness test, also known as segment pressure test; (c) pressure-
controlled test; (d) inspection and reinforcement of patches; (e) inspection and reinforcement of dents;
and (f) Pandacan segment replacement.47Furthermore, in August 2010, with the oil leak hogging the
headlines, FPIC hired NDT Middle East FZE (NDT) to conduct ILI inspections through magnetic flux
leakage (MFL) and ultrasonic tests to, respectively, detect wall thinning of the pipeline and check it for
cracks.
The CA, however, observed that all of these tests and measures are inconclusive and insufficient for
purposes of leak detection and pipeline integrity maintenance. Hence, considering the necessary caution
and level of assurance required to ensure that the WOPL system is free from leaks and is safe for
commercial operation, the CA recommended that FPIC obtain from the DOE a certification that the WOPL
is already safe for commercial operation. This certification, according to the CA, was to be issued with
due consideration of the adoption by FPIC of the appropriate leak detection systems to monitor
sufficiently the entire WOPL and the need to replace portions of the pipes with existing patches and
sleeves. Sans the required certification, use of the WOPL shall remain abated.
The Court found this recommendation of the appellate court proper. Hence, We required FPIC to obtain
the adverted DOE Certification in Our July 30, 2013 Resolution. We deemed it proper to require said
certification from the DOE considering that the core issue of this case requires the specialized knowledge
and special expertise of the DOE and various other administrative agencies. On October 25, 2013, the
DOE submitted the certification pursuant to the July 30, 2013 Resolution of the Court. Later, however, on
August 5, 2014, DOE Secretary Carlos Jericho I. Petilla submitted a letter recommending certain activities
and the timetable for the resumption of the WOPL operations after conducting a dialogue between the
concerned government agencies and FPIC.
After a perusal of the recommendations of the DOE and the submissions of the parties, the Court adopts
the activities and measures prescribed in the DOE letter dated August 5, 2014 to be complied with by
FPIC as conditions for the resumption of the commercial operations of the WOPL. The DOE should,
therefore, proceed with the implementation of the tests proposed in the said August 5, 2014 letter.
Thereafter, if it is satisfied that the results warrant the immediate reopening of the WOPL, the DOE shall
issue an order allowing FPIC to resume the operation of the WOPL. On the other hand, should the probe
result in a finding that the pipeline is no longer safe for continued use and that its condition is
irremediable, or that it already exceeded its serviceable life, among others, the closure of the WOPL may
be ordered.
The DOE is specially equipped to consider FPIC's proper implementation and compliance with its PIMS
and to evaluate the result of the various tests conducted on the pipeline. The DOE is empowered by Sec.
12(b)(l), RA 7638 to formulate and implement policies for the efficient and economical "distribution,
transportation, and storage of petroleum, coal, natural gas."48 Thus, it cannot be gainsaid that the DOE
possesses technical knowledge and special expertise with respect to practices in the transportation of oil
through pipelines.
Moreover, it is notable that the DOE did not only limit itself to the knowledge and proficiency available
within its offices, it has also rallied around the assistance of pertinent bureaus of the other administrative
agencies: the ITDI49 of the DOST, which is mandated to undertake technical services including standards,
analytical and calibration services; the MIRDC,50 also of the DOST, which is the sole government entity
directly supporting the metals and engineering industry;51 the EMB52 of the DENR, the agency mandated
to implement, among others, RA 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act
of 1990) and RA 9275 (Philippine Clean Water Act of 2004); and the BOD of the DPWH, which is
mandated to conduct, supervise, and review the technical design aspects of projects of government
agencies.53
The specialized knowledge and expertise of the foregoing agencies must, therefore, be availed of to
arrive at a judicious decision on the propriety of allowing the immediate resumption of the WOPL's
operation. In a host of cases, this Court held that when the adjudication of a controversy requires the
resolution of issues within the expertise of an administrative body, such issues must be investigated and
resolved by the administrative body equipped with the specialized knowledge and the technical
expertise.54 Hence, the courts, although they may have jurisdiction and power to decide cases, can utilize
the findings and recommendations of the administrative agency on questions that demand "the exercise
of sound administrative discretion requiring the special knowledge, experience, and services of the
administrative tribunal to determine technical and intricate matters of fact."55
Justice Leonen, in his dissent, is of the view that the petition should be denied and the TEPO immediately
lifted in light of the DOE's issuance of a certification attesting to the safety of the WOPL for continued
commercial operations, thereby rendering the instant petition moot and academic, seeking, as it does, the
checking of the pipeline's structural integrity. According to his dissent, the writ of kalikasan issued by the
Court has already served its functions and, therefore, is functus officio. Moreover, he argues that directing
the DOE and FPIC to repeat their previous procedures is tantamount to doubting the agency's
performance of its statutorily-mandated tasks, over which they have the necessary expertise, and implies
that said DOE certification is improper, a breach, allegedly, of the principle of separation of powers.
He also contends that the majority ordered the repetition of the procedures and tests already conducted
on the WOPL because of the fear and uncertainty on its safeness despite the finding of the DOE in favor
of its reopening, taking into consideration the occurrence of numerous pipeline incidents worldwide. The
dissent argues that the precautionary principle should not be so strictly applied as to unjustifiably deprive
the public of the benefits of the activity to be inhibited, and to unduly create other risks.
The dissent's contentions that the case is already moot and academic, that the writ of kalikasan has
already served its function, and that the delay in the lifting of the TEPO may do more harm than good are
anchored on the mistaken premise that the precautionary principle was applied in order to justify the order
to the DOE and the FPIC for the conduct of the various tests anew. The following reasons easily debunk
these arguments:
1. The precautionary principle is not applicable to the instant case;
2. The DOE certification is not an absolute attestation as to the WOPL's structural integrity and in
fact imposes several conditions for FPIC's compliance;
3. The DOE itself, in consultation with FPIC and the other concerned agencies, proposed the
activities to be conducted preparatory to the reopening of the pipeline; and
4 . There are no conclusive findings yet on the WOPL's structural integrity.
Section 1, Rule 20 of A.M. No. 09-6-8-SC or the Rules of Procedure for Environmental Cases, on the
Precautionary Principle, provides that "[ w ]hen there is lack of full scientific certainty in establishing a
causal link between human activity and environmental effect, the court shall apply the precautionary
principle in resolving the case before it."
According to the dissent, the directive for the repetition of the tests is based on speculations, justified by
the application of said principle. This, however, is not the case. Nowhere did We apply the precautionary
principle in deciding the issue on the WOPL's structural integrity.
The precautionary principle only applies when the link between the cause, that is the human activity
sought to be inhibited, and the effect, that is the damage to the environment, cannot be established with
full scientific certainty. Here, however, such absence of a link is not an issue. Detecting the existence of a
leak or the presence of defects in the WOPL, which is the issue in the case at bar, is different from
determining whether the spillage of hazardous materials into the surroundings will cause environmental
damage or will harm human health or that of other organisms. As a matter of fact, the petroleum leak and
the harm that it caused to the environment and to the residents of the affected areas is not even
questioned by FPIC.
It must be stressed that what is in issue in the instant petition is the WOPL's compliance with pipeline
structure standards so as to make it fit for its purpose, a question of fact that is to be determined on the
basis of the evidence presented by the parties on the WOPL's actual state. Hence, Our consideration of
the numerous findings and recommendations of the CA, the DOE, and the amici curiae on the WOPL' s
present structure, and not the cited pipeline incidents as the dissent propounds.
Consider also the fact that it is the DOE itself that imposed several conditions upon FPIC for the
resumption of the operations of the WOPL. This, coupled with the submission by the DOE of its proposed
activities and timetable, is a clear and unequivocal message coming from the DOE that the WOPL's
soundness for resumption of and continued commercial operations is not yet fully determined. And it is
only after an extensive determination by the DOE of the pipeline's actual physical state through its
proposed activities, and not merely through a short-form integrity audit,56 that the factual issue on the
WOPL's viability can be settled. The issue, therefore, on the pipeline's structural integrity has not yet been
rendered moot and remains to be subject to this Court's resolution. Consequently, We cannot say that the
DOE's issuance of the certification adverted to equates to the writ of kalikasan being functus officio at this
point.
The dissent is correct in emphasizing that We defer to the findings of fact of administrative agencies
considering their specialized knowledge in their field. And We, as a matter of fact, acceded to the DOE' s
conclusions on the necessity of the conduct of the various activities and tests enumerated in Sec. Petilla's
letter to this Court dated August 5, 2014. Hence, Our directive for the DOE to immediately commence the
activities enumerated in said Letter, to determine the pipeline's reliability, and to order its reopening
should the DOE find that such is proper.
The dissent also loses sight of the fact that the petition not only seeks the checking of the WOPL's
structural integrity, but also prays for the rehabilitation of the areas affected by the leak, the creation of a
special trust fund, the imposition of liability upon the directors of FPIC, among others. These issues,
undoubtedly, are matters that are not addressed by the DOE certification alone. Furthermore, these are
issues that no longer relate to the WOPL' s structure but to its maintenance and operations, as well as to
the residues of the incident. It will, thus, be improper for Us to simply dismiss the petition on the basis
solely of the alleged resolution of only one of several issues, which purportedly renders the issue on the
WOPL' s soundness moot, without disposing of the other issues presented.
Lastly, any delay in the reopening of the WOPL, if said delay is for the purpose of making sure that the
pipeline is commercially viable, is better than hastily allowing its reopening without an extensive check on
its structural integrity when experience shows that there were and may still be flaws in the pipeline. Even
the DOE, the agency tasked to oversee the supply and distribution of petroleum in the country, is well
aware of this and even recommended the checking of the patched portions of the pipeline, among others.
In this regard, the Court deems it best to take the necessary safeguards, which are not similar to applying
the precautionary principle as previously explained, in order to prevent a similar incident from happening
in the future.
III.
Propriety of the Creation of a Special Trust Fund
Anent petitioners' prayer for the creation of a special trust fund, We note that under Sec. 1, Rule 5 of the
Rules of Procedure for Environmental Cases, a trust fund is limited solely for the purpose of rehabilitating
or restoring the environment. Said proviso pertinently provides:
SEC. 1. Reliefs in a citizen suit. - If warranted, the court may grant to the plaintiff proper reliefs which shall
include the protection, preservation or rehabilitation of the environment and the payment of attorney's
fees, costs of suit and other litigation expenses. It may also require the violator to submit a program of
rehabilitation or restoration of the environment, the costs of which shall be borne by the violator, or to
contribute to a special trust fund for that purpose subject to the control of the court. (emphasis supplied)
Furthermore, Sec. 15( e ), Rule 7 of the Rules of Procedure for Environmental Cases expressly prohibits
the grant of damages to petitioners in a petition for the issuance of a writ of kalikasan, viz:
Section 15. Judgment. - Within sixty (60) days from the time the petition is submitted for decision, the
court shall render judgment granting or denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
xxxx
(e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the
protection, preservation, rehabilitation or restoration of the environment, except the award of damages to
individual petitioners.
A reading of the petition and the motion for partial reconsideration readily reveals that the prayer is for the
creation of a trust fund for similar future contingencies. This is clearly outside the limited purpose of a
special trust fund under the Rules of Procedure for Environmental Cases, which is to rehabilitate or
restore the environment that has presumably already suffered. Hence, the Court affirms with concurrence
the observation of the appellate court that the prayer is but a claim for damages, which is prohibited by
the Rules of Procedure for Environmental Cases. As such, the Court is of the considered view that the
creation of a special trust fund is misplaced. The present ruling on petitioners' prayer for the creation of a
special trust fund in the instant recourse, however, is without prejudice to the judgment/s that may be
rendered in the civil and/or criminal cases filed by petitioners arising from the same incident if the
payment of damages is found warranted.
IV.
Liability of FPIC, FGC and their respective Directors and Officers
On the last issue of the liability of FPIC, FGC and their respective directors and officers, the CA found
FGC not liable under the TEPO and, without prejudice to the outcome of the civil case (Civil Case No. 11-
256, RTC, Branch 58 in Makati City) and criminal complaint (Complaint-Affidavit for Reckless
Imprudence, Office of the Provincial Prosecutor of Makati City) filed against them, the individual directors
and officers of FPIC and FGC are not liable in their individual capacities.
The Court will refrain from ruling on the finding of the CA that the individual directors and officers of FPIC
and FGC are not liable due to the explicit rule in the Rules of Procedure for Environmental cases that in a
petition for a writ of kalikasan, the Court cannot grant the award of damages to individual petitioners
under Rule 7, Sec. 15(e) of the Rules of Procedure for Environmental Cases. As duly noted by the CA,
the civil case and criminal complaint filed by petitioners against respondents are the proper proceedings
to ventilate and determine the individual liability of respondents, if any, on their exercise of corporate
powers and the management of FPIC relative to the dire environmental impact of the dumping of
petroleum products stemming from the leak in the WOPL in Barangay Bangkal, Makati City.
Hence, the Court will not rule on the alleged liability on the part of the FPIC and FGC officials which can,
however, be properly resolved in the civil and criminal cases now pending against them.
Other Matters
The CA's resolution on petitioners' September 9, 2011 Manifestation (Re: Current Developments) with
Omnibus Motion on the remediation plan in Barangay Bangkal by directing the Inter-Agency Committee
on Environmental Health to submit its evaluation of the said plan prepared by CH2M Philippines, Inc., for
FPIC to strictly comply with the stipulations embodied in the permits issued by the DENR, and to get a
certification from the DENR of its compliance thereto is well taken. DENR is the government agency
tasked to implement the state policy of "maintaining a sound ecological balance and protecting and
enhancing the quality of the environment"57 and to "promulgate rules and regulations for the control of
water, air, and land pollution."58 It is indubitable that the DENR has jurisdiction in overseeing and
supervising the environmental remediation of Barangay Bangkal, which is adversely affected by the leak
in the WOPL in 2010.
With regard to petitioners' March 29, 2012 Supplemental Manifestation about a recent possible leak in the
pipeline, the CA appropriately found no additional leak. However, due to the devastating effect on the
environs in Barangay Bangkal due to the 2010 leak, the Court finds it fitting that the pipeline be closely
and regularly monitored to obviate another catastrophic event which will prejudice the health of the
affected people, and to preserve and protect the environment not only for the present but also for the
future generations to come.
Petitioner's January 10, 2013 Motion for Partial Recommendation of the CA' s Report need not be
discussed and given consideration. As the CA' s Report contains but the appellate court's
recommendation on how the issues should be resolved, and not the adjudication by this Court, there is
nothing for the appellate court to reconsider.
As to petitioner's October 2, 2013 Motion for Reconsideration with Motion for Clarification, the matters
contained therein have been considered in the foregoing discussion of the primary issues of this case.
With all these, We need not belabor the other arguments raised by the parties.
IN VIEW OF THE FOREGOING, the Motion for Partial Reconsideration is hereby DENIED. The Motion
for Reconsideration with Motion for Clarification is PARTLY GRANTED. The Court of Appeals'
recommendations, embodied in its December 21, 2012 Report and Recommendation, are hereby
ADOPTED with the following MODIFICATIONS:
I. The Department of Energy (DOE) is hereby ORDERED to oversee the strict implementation of the
following activities:
A. Preparatory to the Test Run of the entire stretch of the WOPL:
1) FPIC shall perform the following:
a. Continue submission of monitoring charts, data/reading, accomplishment

reports, and project status for all related activities/works. Respond to comments
and prepare for site inspection.
b. Continue gas testing along the right-of-way using the monitoring wells or
boreholes. Prepare for inspection of right-of-way and observation of gas testing
activities on monitoring wells and boreholes.
c. Explain the process of the selection of borehole location and identify those
located in pipeline bends, bodies of water, highways, residential areas, repaired
portions of the pipelines, dents and welded joints, as well other notable factors,
circumstances, or exposure to stresses. d. Set up additional boreholes and
monitoring wells sufficient to cover the entire stretch of the WOPL, the number
and location of which shall be determined by the DOE.
e. Continue submitting status report to the concerned government agency/ies

relating to "Project Mojica," or the on-going pipeline segment realignment activity
being undertaken by FPIC to give way to a flood control project of the MMDA in
the vicinity of Mojica St. and Pres. Osmea Highway, and prepare for site
inspection.
2) The DOE shall perform the following undertakings:
a. Conduct onsite inspection of the pipeline right-of-way, the area around the
WOPL and the equipment installed underground or aboveground.
b. Review and check the condition of the 22 patches reinforced with Clockspring
sleeves by performing the following:
i. Determine the location of the sleeves
ii. Review the procedure for the repair of the sleeves
iii. Inspect the areas where the affected portions of the WOPL are
located and which are easily accessible.
c. Inspect onsite the cathodic protection rectifier to check the following:
i. old and current readings
ii. the segment/s covered by the cathodic protection system
iii. review the criteria for prioritization of corrective action.
d. Observe and witness the running/operation of the intelligent and cleaning pigs.
e. Check and calibrate the instruments that will be used for the actual tests on
the pipeline, and validate the calibration certificates of these instruments.
B. During the Actual Test Run:
1) FPIC shall perform the following:
a. Perform Cleaning Pig run and witness the launching and receiving of the
intelligent and cleaning pigs.
b. Demonstrate and observe the various pressure and leakage tests, including
the following:
i. "Blocked-in pressure test" or the pressure test conducted while all the
WOPL's openings are blocked or closed off; and
ii. "In-operation test" or the hourly monitoring of pressure rating after the
pipeline is filled with dyed water and pressurized at a specified rate.
c. Continue, inspect, and oversee the current gas monitoring system, or the
monitoring of gas flow from the boreholes and monitoring wells of the WOPL.
d. Check the mass or volume balance computation during WOPL test run by
conducting:
i. 30 days baseline data generation
ii. Computational analysis and monitoring of the data generated.
II. After FPIC has undertaken the activities prescribed in the preceding paragraph 1, the DOE shall
determine if the activities and the results of the test run warrant the re-opening of the WOPL. In the event
that the DOE is satisfied that the WOPL is safe for continued commercial operations, it shall issue an
order allowing FPIC to resume the operations of the pipeline.
III. Once the WOPL is re-opened, the DOE shall see to it that FPIC strictly complies with the following
directives:
a. Continue implementation of its Pipeline Integrity Management System (PIMS), as reviewed by

the DOE, which shall include, but shall not be limited to:
1. the conduct of daily patrols on the entire stretch of the WOPL, every two hours;
2. continued close monitoring of all the boreholes and monitoring wells of the WOPL
pipeline;
3. regular periodic testing and maintenance based on its PIMS; and
4. the auditing of the pipeline's mass input versus mass output;
b. submit to the DOE, within ten (10) days of each succeeding month, monthly reports on its
compliance with the above directives and any other conditions that the DOE may impose, the
results of the monitoring, tests, and audit, as well as any and all activities undertaken on the
WOPL or in connection with its operation. The concerned government agencies, namely: the
Industrial Technology Development Institute (ITDI) and the Metals Industry Research and
Development Center (MIRDC), both under the Department of Science and Technology (DOST),
the Environmental Management Bureau (EMB) of the Department of Environment and Natural
Resources (DENR), the Bureau of Design (BOD) of the Department of Public Works and
Highways (DPWH), the University of the Philippines - National Institute of Geological Science
(UP-NI GS) and University of the Philippines - Institute of Civil Engineering (UP-ICE), the
petitioners, intervenors and this Court shall likewise be furnished by FPIC with the monthly
reports. This shall include, but shall not be limited to: realignment, repairs, and maintenance
works; and
c. continue coordination with the concerned government agencies for the implementation of its
projects.1wphi1
IV. 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.
SO ORDERED.

Associate Justice
WE CONCUR:
MARIA LOURDES P.A. SERENO

Chief Justice
ANTONIO T. CARPIO* TERESITA J. LEONARDO-DE CASTRO

(No part)
ARTURO D. BRION (On Official Leave)
Associate Justice DIOSDADO M. PERALTA**
Associate Justice
LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

- No Part -
JOSE PORTUGAL PEREZ
MARTIN S. VILLARAMA, JR.
Associate Justice
Associate Justice
JOSE CATRAL MENDOZA BIENVENIDO L. REYES

(On Official Leave)

See separate dissenting opinion
ESTELA M. PERLAS-BERNABE
(left my vote)
Associate Justice
MARVIC M.V.F. LEONEN***
Associate Justice
FRANCIS H. JARDELEZA
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer of the
MARIA LOURDES P.A. SERENO

Chief Justice
Footnotes
* No part.
** No part and on official leave.
*** On official leave.
1 Namely: (1) The Catholic Bishop's Conference of the Philippines, represented by Most. Rev.
Bishop Tobias, D.D. and Most Rev. Bishop Antonio Tobias, D.D.; (2) Kilusang Makabansang
Ekonomiya, represented by Mr. Jaime Regalario; (3) Alliance Against the presence of Oil Depot
in Manila, represented by Councilor Maria Lourdes "Bonjay" Isip-Garcia; (4) The Women's
Business Council of the Philippines, represented by its President, Ms. Pacita Juai1; (5) Zonta
International Makati Ayala, represented by Vicky Santos Abraham; (6) Junior Chamber
International - San Juan Chapter, represented by Atty. Irene Joy Besido-Garcia; (7) Various
Individuals, most of whom are residents of West Tower and Barangay Bangkal, Makati City; (8)
Consolidated Mansions Condominium Corporation, represented by its President, Mr. Enrique R.
Estacion. (Petition, p. 4).
2 Rollo, pp. 162-165.
3 Id. at 238-280.
4 Id. at 288-319.
5 Id. at 472-477.
6 Id. at 504-507.
7 Id. at 542-548.
8Civil Case No. 11-256 before the RTC-Br. 58 in Makati City for Violation of Republic Act No.
6969 (Toxic Substances and Hazardous and Nuclear Wastes Control Act of 1990), Republic Act
No. 8749 (Philippine Clean Air Act of 1999) and its Implementing Rules and Regulations,
Republic Act No. 9275 (Philippine Clean Water Act of 2004) and Damages against respondents;
and Complaint-Affidavit against FPIC, FGC and their respective directors and officers before the
Office of the Provincial Prosecutor of Makati City for Violation of Article 365 of the Revised Penal
Code (Reckless Imprudence).
9 Rollo, pp. 865-869, Resolution dated May 31, 2011.
10 Id. at 1039-1047.
11 Id. at 1249-1254.
12 Under Sec. 4(t), Rule I of the Rules of Procedure for Environmental Cases, the precautionary
principle states that when human activities may lead to threats of serious and irreversible damage
to the environment that is scientifically plausible but uncertain, actions shall be taken to avoid or
diminish the threat.
13 Rollo, pp. 1269-1273.
14Id. at 1398-1403. On February 7, 2012, the records of the instant case were ordered to be
forwarded to the CA.
15 By its Resolutions dated April 13 and 23, 2012.
16 The persons appointed were:
1) Mapua Institute of Technology Mechanical Engineering (MIT-ME);
2) Philippine Council for Health Research and Development of the Department of

Science and Technology (PCHRD-DOST);
3) Dr. Benjamin R. de Jesus, Jr., a Professional Environmental Specialist;
4) Engr. Erwin R. Rabino, a licensed Mechanical Engineer;
5) University of the Philippines (UP) National Institute of Geological Sciences (UP-NIGS);
6) UP College of Engineering (UP--CE);
7) UP Institute of Civil Engineering (UP-ICE);
8) An expert from the DOE; and
9) Inter-Agency Committee on Environmental Health-Technical Working Group ("IACEH-

TWG") composed of:
a. Representatives from the Department of Environment and Natural Resources

(DENR);
b. Department of Health (DOH);
c. National Poison Management and Control Center; and
d. Makati City Government.
17 Rollo, pp. 2799-2800. The following filed their reports:
(a) UP-NIGS, through Dr. Carlo A. Arcilla;
(b) UP-ICE, through Maria Antonia N. Tanchuling;
(c) Engr. Rabino; and
(d) Dr. de Jesus.
UP-CE did not submit its report. MIT-ME and PCHRD-DOST both declined for lack of
experts on the field.
18Penned by Justice Fernanda Lampas Peralta and concurred in by Associate Justices Mario V.
Lopez and Socorro B. Inting.
19 Rollo, pp. 3192-3231.
20 Id. at 3235-3238.
21 Id. at 3239.
26
In so arguing, respondents cited the Department of Energy Act of 1992 (RA 7638) and
Downstream Oil Industry Deregulation Act of 1998 (RA 7638).
27 Rollo, p. 3135.
28See Hopkins, Phil, The Structural Integrity of Oil and Gas Transmission Pipelines,
Comprehensive Structural Integrity Vol. l, Elsevier Publishers (2002)
<http://www.penspen.com/downloads/papers/documents/thestructuralintegrityofoilandgastransmi
ssionpipel ines.pdt> (visited July 23, 2013).
29 See <http://www.taiwantoday.tw/ct.asp?xitem=220250&CtNode=416.
http://edition.cnn.com/2014/07 /31 /world/asia/taiwan-explosions> and

<http://www.chinapost.com.tw/taiwan/local/kaohsiung/2014/08/01/413785/Multipul-
gas.htm> (both visited August 18, 2014).
30See <http://www.reuters.com/article/2013/ 11 /26/us-china-sinopec-

blastsidUSBRE9AP02N2013Il26> (visited August 18, 2014).
31 See <http://edition.cnn.com/20 I l/WORLD/africa/09/12/kenya.fire/> (visited August 18, 2014).
32 See <http://www.nytimes.com/2014/04/02/us/pacific-gas-and-electric-charged-with-12-
feloniesin-explosion.html> and
<http://topics.nytimes.com/top/reference/timestopics/subjects/e/explosions/san _ bruno _gas_
explosion_ 2010/index.html> (both visited August 18, 2014 ).
33See <http://www3.aiche.org/proceedings/ Abstract.aspx?Paper1D=40438> and

<http://www.nytimes.com/2004/07 /31 /world/gas-pipeline-explosion-kills-about-15-in-
belgium.html> (both visited August 18, 2014).
37 Dated March 10, 2015, March 13, 2015, and March 23, 2015, respectively.
38 CA Report and Recommendation, p. 14.
39 Heirs of Jose G. Santiago v. Santiago, G.R. No. 161238, July 13, 2009, 592 SCRA 409, 415;
citing Section 2, Rule 3 of the 1997 Rules of Civil Procedure.
40 Section 2, Rule 3 of the 1997 Rules of Civil Procedure.
41Consumido v. Ros, G.R. No. 166875, July 31, 2007, 528 SCRA 696, 702; citing Vidal v.
Escueta, G.R. No. 156228, December 10, 2003, 417 SCRA 617, 634.
42 Id.; citing Borlongan v. Madrideo, G.R. No. 120267, January 25, 2000, 323 SCRA 248, 256
(citing 39 Am Jur 858 and the 1997 Rules of Civil Procedure, Rule 3, Section 2).
45 Section I. Nature of the Writ. - The writ is a remedy available to a natural or juridical person,
entity authorized by law, people's organization, non-governmental organization, or any public
interest group accredited by or registered with any government agency, on behalf of persons
whose constitutional right to a balanced and healthful ecology is violated, or threatened with
violation by an unlawful act or omission of a public official or employee, or private individual or
entity, involving environmental damage of such magnitude as to prejudice the life, health or
property of inhabitants in two or more cities or provinces.
46SEC. 3. Permanent EPO; writ of continuing mandamus. - In the judgment, the court may
convert the TEPO to a permanent EPO or issue a writ of continuing mandamus directing the
performance of acts which shall be effective until the judgment is fully satisfied.
The court may, by itself or through the appropriate government agency, monitor the
execution of the judgment and require the party concerned to submit written reports on a
quarterly basis or sooner as may be necessary, detailing the progress of the execution
and satisfaction of the judgment. The other party may, at its option, submit its comments
or observations on the execution of the judgment.
47See Integrated Report on the Department of Energy-Prescribed Segment Pressure Test,

Borehole Tests and Pressure-Controlled Leak Test on the White Oil Pipeline, November 2010 -
December 2011 (rollo, pp. 1789-1798, 2014-2023) and Compliance Plan for Pipeline Integrity,
West Tower Rehabilitation and Bangkal Remediation (id. at 1862-1870).
48Section 12 (b)(l), RA 7638. The Department Energy Act of 1992. Section 5 of RA 7638 also
states:
Section 5. Powers and Functions. - The Department shall have the following powers and
functions:
(a) Formulate policies for the planning and implementation of a comprehensive program
for the efficient supply and economical use of energy consistent with the approved
national economic plan and with the policies on environmental protection and
conservation and maintenance of ecological balance, and provide a mechanism for the
integration, rationalization, and coordination of the various energy programs of the
Government;
(b) Develop and update the existing Philippine energy program which shall provide for an
integrated and comprehensive exploration,. development, utilization, distribution and
conservation of energy resources, with preferential bias for environment-friendly,
indigenous, and low-cost sources of energy. The program shall include a policy direction
towards the privatization of government agencies related to energy, deregulation of the
power and energy industry and reduction of dependency on oil-fired plants. Said program
shall be updated within nine (9) months from its completion and not later than the
fifteenth day of September every year thereafter;
(c) Establish and administer programs for the exploration, transportation, marketing,
distribution, utilization, conservation, stockpiling and storage of energy resources of all
forms, whether conventional or non-conventional. (emphasis supplied)
49 The ITDI was organized under EO 128 dated January 30, 1987, which states:
SEC. 20. Industrial Technology Development Institute. There is hereby created the Industrial
Technology Development Institute, which shall have the following functions:
Undertake applied research and development to develop technologies and technological

innovations in the field of industrial manufacturing, mineral processing and energy;
Undertake the transfer of research results directly to end-users or preferably via linkage units of
other government agencies;
Undertake technical services,. such as but not limited to, standards, analytical and calibration
services mandated by law or as needed by industry;
Conduct training and provide technical advisory and consultancy services to industry clientele
and end-users.
The Institute shall be headed by a Director, who shall be appointed by the President upon the
recommendation of the Director-General and shall be assisted by one or more Deputy Directors,
as may be necessary. The Institute shall have the following divisions:
[l] Chemicals and Minerals Division;
xxxx
[3] Fuels and Energy Division;
xxxx
[7] Environmental Division;
xxxx
[10] Standards and Testing Division.

50MIRDC was established under RA No. 4724 dated June 18, 1966, as amended by RA 6428
dated May 31, 1972. RA 4 724, as amended states, viz:
Sec. 4. Establishment of Metals Industry Development Center. - There is hereby established a

Metals Industry Development Center, organized jointly by and with the support of the government
and private sectors as a non-profit institution, to undertake the following activities:
xxxx
b. Training, Information Exchange and Accreditation Service:
(1) To operate an information exchange center to gather and disseminate information on

recent economic and technological developments, both local and foreign, that are of
interest to the industry;
(2) To assemble and maintain an up-to-date library on metals economics and technology;
(3) To collect information and statistics for preparation of comprehensive and up-to-date
industry studies;
(4) To maintain, in consultation with the Department of Education and with appropriate
existing government agencies and training institutions an effective training program for
engineers, technicians and craftsmen to cope with the manpower requirements of metal
plants and metal fabrication industries;
(5) To correlate studies on the various sectors of the metals and allied industries as a
basis for formulating a development program and a framework for investment to induce
the rapid and systematic growth of the industry;
(6) To design, develop, and implement a system of accreditation for skilled laborers,
technicians and engineers who have attained a degree of experience or proficiency in the
various fields of specialization in the metals and allied industries.
c. Control and Testing of Metal Products:
(1) To determine and recommend appropriate standards for the metals and allied
industries to protect consumers and end-users and to enable local producers to attain
quality that will meet international standards;
(2) To study, recommend and provide upon request suitable production methods that
private industry may adopt to improve quality and to standardize products to comply with
the close tolerance requirements of mass production and modem engineering products;
(3) To provide umpire services in arbitration cases between suppliers and customers
dealing with metals or intermediate and finished products of the metals and allied
industries;
d. Metals Research and Development:
(1) To establish a metals research and development laboratory to provide answers to

problems encountered by the metals and allied industries;
(2) To provide working experience and opportunities for professional development to
creative Filipino engineers at both the professional and student levels in the fields of
metals technology. x x x
51 See <http://www.mirdc.dost.gov.ph/> (visited November 27, 2014).
52Further, under Executive Order No. 192, EMB is mandated to provide research and laboratory
services, viz:
SECTION 16. Environmental Management Bureau. There is hereby created an Environmental

Management Bureau. x x x The Environmental Management Bureau shall have the following
functions:
a. Recommend possible legislations, policies and programs for environmental

management and pollution control;
b. Advise the Regional Offices in the efficient and effective implementation of policies,
programs, and projects for the effective and efficient environmental management and
pollution control;
c. Formulate environmental quality standards such as the quality standards for water, air,
land, noise and radiations;
d. Recommend rules and regulations for environmental impact assessments and provide
technical assistance for their implementation and monitoring;
e. Formulate rules and regulations for the proper disposition of solid wastes, toxic and
hazardous substances;
f. Advice the Secretary on the legal aspects of environmental management and pollution
control and assist in the conduct of public hearings in pollution cases;
g. Provide secretariat assistance to the Pollution Adjudication Board, created under

Section 19 hereof;
h. Coordinate the inter-agency committees that may be created for the preparation of the
State of the Philippine Environment Report and the National Conservation Strategy;
i. Provide assistance to the Regional Offices in the formulation and dissemination of

information on environmental and pollution matters to the general public;
j. Assist the Secretary and the Regional Officers by providing technical assistance in the
implementation of environmental and pollution laws;
k. Provide scientific assistance to the Regional Offices in the conduct of environmental

research programs.
53See <http://www.dpwh.gov.ph/bureau services/bod/overview.htm> (visited November 27,

2014).
54mart Communications, Inc. v. National Telecommunications Communication, G.R. No. 151908,
August 12, 2003, 408 SCRA 678; Pambujan Sur United Mine Workers, v. Samar Mining
Company, Inc., No. L-5694, May 12, 1954, 94 SCRA 932. 941, citing 42 Am. Jur. 698.
55
Saavedra v. Securities and Exchange Commission, G.R. No. 80879, March 21, 1988, 159
SCRA 57, 62.
56 Rollo, p. 1765.
57 Sec. 1(1), Chapter 1, Title XIV of the Administrative Code of 1987.
58 Sec. 4(17), id.

Writ of Kalikasan

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G.R. No.

206510 September 16, 2014

VILLARAMA, JR, J.:

p. Allow for continuing discovery measures;

Respondents' Consolidated Comment

The Court's Ruling

or other government ship operated for non-commercial purposes

We are not persuaded.

(a) To assist the parties in reaching a settlement;

MARTIN S. VILLARAMA, JR.

See Concurring Opinion

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

MARIANO C. DEL CASTILLO JOSE PORTUGAL PEREZ

(On official leave)

MARIA LOURDES P. A. SERENO

1 T ubbataha Reefs Natural Park - <http://tubbatahareef org>.

4 Rollo, pp. 194-199.

7 Rollo, pp. 89-92.

13 G.R. No. 101083, July 30, 1993, 224 SCRA 792.

16 See ANNOTATION TO THE RULES OF PROCEDURE FOR ENVIRONMENTAL CASES ..

18 261 Phil. 777 (1990).

20 445 Phil. 250 (2003).

21 Id. at 269-270. Citations omitted.

23 Supra note 18, at 788-789 & 797.

25 G.R. No. 90314, November 27, 1990, 191 SCRA 713.

27 24 F Supp. 2d 155, 159 (D.P.R. 1997).

28 Merlin M. Magallona, A Primer on the Law of the Sea, 1997, p. 1.

29Bertrand Theodor L. Santos, "Untangling a Tangled Net of Confusion: Reconciling the

37 Rule 10, RULES OF PROCEDURE FOR ENVIRONMENTAL CASES.

38USS Port Royal (CG73)" - <http://navysite.de/cg/cg73.html>; "USS Port Royal Returns to

41 Supra note 36.

The Lawphil Project - Arellano Law Foundation

Relevant Laws and Jurisprudence

Republic of the Philippines

G.R. No. 207257 February 3, 2015

G.R. No. 207276

REDONDO PENINSULA ENERGY, INC., Petitioner,

G.R. No. 207282

G.R. No. 207366

SUBIC BAY METROPOLITAN AUTHORITY, Petitioner,

VELASCO, JR., J.:

Environmental Impact and

Specifically, the unlawful acts or omissions are:

Thus, the second requisite was satisfied.

The petition avers:

Petition for Issuance of Writ of Kalikasan

Oposa ruling should not be abandoned

I strongly disagree with the proposal.

PRESBITERO J. VELASCO, JR.

1 Rollo (G.R. No. 207282), pp. 21-24.

3 Petition, pp. 17-18.

6 Annotation to the Rules of Procedure for Environmental Cases,p. 98.

9 G.R. No. 101083, July 30, 1993, 224 SCRA 792.

The Lawphil Project - Arellano Law Foundation

CONCURRING AND DISSENTING OPINION

(1) "There is a clear legal basis for the representative suit;

(a) the environmental impactof the proposed action, project or undertaking[;]

(c) alternative to the proposed action;

Section 4. Environmental Impact Statements.. . .

(a) the environmental impactof the proposed action, project or undertaking[;]

(c) alternative to the proposed action;