NREL

July 26, 2016

https://science.sciencemag.org/content/sci/162/3859/1243.full.pdf

G.R. No. 209271

INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-BIOTECH APPLICATIONS, INC., Petitioner
vs.
GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT 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

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G.R. No. 209276

ENVIRONMENTAL MANAGEMENT BUREAU OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, BUREAU OF PLANT INDUSTRY AND THE FERTILIZER AND PESTICIDE AUTHORITY OF THE DEPARTMENT OF AGRICULTURE, Petitioners,
vs.
COURT OF APPEALS, GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT 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.

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G.R. No. 209301

UNIVERSITY OF THE PHILIPPINES LOS BANOS FOUNDATION, INC., Petitioner,
vs.
GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZLUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY L. ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN, and EDWIN MARTHINE LOPEZ, Respondents.

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G.R. No. 209430

UNIVERSITY OF THE PHILIPPINES LOS BAÑOS, Petitioner,
vs.
GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT 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 L. ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN, and EDWIN MARTHINE LOPEZ, Respondents.

R E S O L U T I O N

PERLAS-BERNABE, J.:

Before the Court are nine (9) Motions for Reconsideration1 assailing the Decision2 dated December 8, 2015 of the Court (December 8, 2015 Decision), which upheld with modification the Decision3 dated May 17, 2013 and the Resolution4 dated September 20, 2013 of the Court of Appeals (CA) in CA-G.R. SP No. 00013.

The Facts

The instant case arose from the conduct of field trials for "bioengineered eggplants," known as Bacillus thuringiensis (Bt) eggplant (Bt talong), administered pursuant to the Memorandum of Undertaking5 (MOU) entered into by herein petitioners University of the Philippines Los Baños Foundation, Inc. (UPLBFI) and International Service for the Acquisition of Agri-Biotech Applications, Inc. (ISAAA), and the University of the Philippines Mindanao Foundation, Inc. (UPMFI), among others. Bt talong contains the crystal toxin genes from the soil bacterium Bt, which produces the CrylAc protein that is toxic to target insect pests. The Cry1Ac protein is said to be highly specific to lepidopteran larvae such as the fruit and shoot borer, the most destructive insect pest to eggplants.6

From 2007 to 2009, petitioner University of the Philippines Los Banos (UPLB), the implementing institution of the field trials, conducted a contained experiment on Bt talong under the supervision of the National Committee on Biosafety of the Philippines (NCBP).7 The NCBP, created under Executive Order No. (EO) 430,8 is the regulatory body tasked to: (a) "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 (b) ''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."9 Upon the completion of the contained experiment, the NCBP issued a Certificate10 therefor stating that all biosafety measures were complied with, and no untoward incident had occurred.11

On March 16, 2010 and June 28, 2010, the Bureau of Plant Industries (BPI) issued two (2)-year Biosafety Permits12 for field testing of Bt talong13after UPLB's field test proposal satisfactorily completed biosafety risk assessment for field testing pursuant to the Department of Agriculture's (DA) Administrative Order No. 8, series of 200214 (DAO 08-2002),15 which provides for the rules and regulations for the importation and release into the environment of plants and plant products derived from the use of modern biotechnology.16 Consequently, field testing proceeded in approved trial sites in North Cotabato, Pangasinan, Camarines Sur, Davao City, and Laguna.17

On April 26, 2012, respondents Greenpeace Southeast Asia (Philippines) (Greenpeace), Magsasaka at Siyentipiko sa Pagpapaunlad ng Agrikultura (MASIPAG), and others (respondents) filed before the Court a Petition for Writ of Continuing Mandamus and Writ of Kalikasan with Prayer for the Issuance of a Temporary Environmental Protection Order (TEPO)18 (petition for Writ of Kalikasan) against herein petitioners the Environmental Management Bureau (EMB) of the Department of Environment and Natural Resources (DENR), the BPI and the Fertilizer and Pesticide Authority (FPA) of the DA, UPLBFI, and ISAAA, and UPMFI, alleging that the Bt talong field trials violated their constitutional right to health and a balanced ecology considering, among others, that: (a) the Environmental Compliance Certificate (ECC), as required by Presidential Decree No. (PD) 1151,19 was not secured prior to the field trials;20 (b) the required public consultations under the Local Government Code (LGC) were not complied with;21 and (c) as a regulated article under DAO 08-2002, Bt talong is presumed harmful to human health and the environment, and that there is no independent, peer-reviewed study showing its safety for human consumption and the environment.22 Further, they contended that since the scientific evidence as to the safety of Bt talong remained insufficient or uncertain, and that preliminary scientific evaluation shows reasonable grounds for concern, the precautionary principle should be applied and, thereby, the field trials be enjoined.23

On May 2, 2012, the Court issued24 a Writ of Kalikasan against petitioners (except UPLB25) and UPMFI, ordering them to make a verified return within a non-extendible period of ten (10) days, as provided for in Section 8, Rule 7 of the Rules of Procedure for Environmental Cases.26 Thus, in compliance therewith, ISAAA, EMB/BPI/FPA, UPLBFI, and UPMFI27 filed their respective verified returns,28 and therein maintained that: (a) all environmental laws were complied with, including the required public consultations in the affected communities; (b) an ECC was not required for the field trials as it will not significantly affect the environment nor pose a hazard to human health; (c) there is a plethora of scientific works and literature, peer-reviewed, on the safety of Bt talong for human consumption; (d) at any rate, the safety of Bt talong for human consumption is irrelevant because none of the eggplants will be consumed by humans or animals and all materials not used for analyses will be chopped, boiled, and buried following the conditions of the Biosafety Permits; and (e) the precautionary principle could not be applied as the field testing was only a part of a continuing study to ensure that such trials have no significant and negative impact on the environment.29

On July 10, 2012, the Court issued a Resolution30 referring the case to the Court of Appeals for acceptance of the return of the writ and for hearing, reception of evidence, and rendition of judgment.31 In a hearing before the CA on August 14, 2012, UPLB was impleaded as a party to the case and was furnished by respondents a copy of their petition. Consequently the CA directed UPLB to file its comment to the petition32 and, on August 24, 2012, UPLB filed its Answer33 adopting the arguments and allegations in the verified return filed by UPLBFI. On the other hand, in a Resolution34 dated February 13, 2013, the CA discharged UPMFI as a party to the case pursuant to the Manifestation and Motion filed by respondents in order to expedite the proceedings and resolution of the latter's petition.

The CA Ruling

In a Decision35 dated May 17, 2013, the CA ruled in favor of respondents and directed petitioners to pem1anently cease and desist from conducting the Bt talong field trials.36 At the outset, it did not find merit in petitioners' contention that the case should be dismissed on the ground of mootness, noting that the issues raised by the latter were "capable of repetition yet evading review" since the Bt talong field trial was just one of the phases or stages of an overall and bigger study that is being conducted in relation to the said genetically-modified organism.37 It then held that the precautionary principle set forth under Section 1,38 Rule 20 of the Rules of Procedure for Environmental Cases39 is relevant, considering the Philippines' rich biodiversity and uncertainty surrounding the safety of Bt talong. It noted the possible irreversible effects of the field trials and the introduction of Bt talong to the market, and found the existing regulations issued by the DA and the Department of Science and Technology (DOST) insufficient to guarantee the safety of the environment and the health of the people.40

Aggrieved, petitioners separately moved for reconsideration.41 However, in a Resolution42 dated September 20, 2013, the CA denied the same and remarked that introducing genetically modified plant into the ecosystem is an ecologically imbalancing act.43 Anent UPLB 's argument that the Writ of Kalikasan violated its right to academic freedom, the CA emphasized that the writ did not stop the research on Bt talong but only the procedure employed in conducting the field trials, and only at this time when there is yet no law ensuring its safety when introduced to the environment.44

Dissatisfied, petitioners filed their respective petitions for review on certiorari before this Court.

The Proceedings Before the Court

In a Decision45 dated December 8, 2015, the Court denied the petitions and accordingly, affinned with modification the ruling of the CA.46 Agreeing with the CA, the Court held that the precautionar; principle applies in this case since the risk of harm from the field trials of Bt talong remains uncertain and there exists a possibility of serious and irreversible harm. The Court observed that eggplants are a staple vegetable in the country that is mostly grown by small-scale farmers who are poor and marginalized; thus, given the country's rich biodiversity, the consequences of contamination and genetic pollution would be disastrous and irreversible.47

The Court likewise agreed with the CA in not dismissing the case for being moot and academic despite the completion and termination of the Bt talong field trials, on account of the following exceptions to the mootness principle: (a) the exceptional character of the situation and the paramount public interest is involved; and (b) the case is capable of repetition yet evading review.48

Further, the Court noted that while the provisions of DAO 08-2002 were observed, the National Biosafety Framework (NBF) established under EO 514, series of 200649 which requires public participation in all stages of biosafety decision-making, pursuant to the Cartagena Protocol on Biosafety50 which was acceded to by the Philippines in 2000 and became effective locally in 2003, was not complied with.51 Moreover, the field testing should have been subjected to Environmental Impact Assessment (EIA), considering that it involved new technologies with uncertain results.52

Thus, the Court permanently enjoined the field testing of Bt talong. In addition, it declared DAO 08-2002 null and void for failure to consider the provisions of the NBF. The Court also temporarily enjoined any application for contained use, field testing, propagation, commercialization, and importation of genetically modified organisms until a new administrative order is promulgated in accordance with law.53

The Issues Presented in the Motions for Reconsideration

Undaunted, petitioners moved for reconsideration,54 arguing, among others, that: (a) the case should have been dismissed for mootness in view of the completion and termination of the Bt talong field trials and the expiration of the Biosafety Permits;55 (b) the Court should not have ruled on the validity of DAO 08-2002 as it was not raised as an issue;56 and (c) the Court erred in relying on the studies cited in the December 8, 2015 Decision which were not offered in evidence and involved Bt corn, not Bt talong.57

In their Consolidated Comments,58 respondents maintain, in essence, that: (a) the case is not mooted by the completion of the field trials since field testing is part of the process of commercialization and will eventually lead to propagation, commercialization, and consumption of Bt talong as a consumer product;59 (b) the validity of DAO 08-2002 was raised by respondents when they argued in their petition for Writ of Kalikasan that such administrative issuance is not enough to adequately protect the Constitutional right of the people to a balanced and healthful ecology;60 and (c) the Court correctly took judicial notice of the scientific studies showing the negative effects of Bt technology and applied the precautionary principle.61

The Court's Ruling

The Court grants the motions for reconsideration on the ground of mootness.

As a rule, the Court may only adjudicate actual, ongoing controversies.62 The requirement of the existence of a "case" or an "actual controversy" for the proper exercise of the power of judicial review proceeds from Section 1, Article VIII of the 1987 Constitution:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the comis 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. (Emphasis supplied)

Accordingly, the Court is not empowered to decide moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the result as to the thing in issue in the case before it. In other words, when a case is moot, it becomes non-justiciable.63

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. There is nothing for the court to resolve as the determination thereof has been overtaken by subsequent events.64

Nevertheless, case law states that the Court will decide cases, otherwise moot, if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest are 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.65 Thus, jurisprudence recognizes these four instances as exceptions to the mootness principle.

In the December 8, 2015 Decision of the Court, it was held that (a) the present case is of exceptional character and paramount public interest is involved, and (b) it is likewise capable of repetition yet evading review. Hence, it was excepted from the mootness principle.66 However, upon a closer scrutiny of the parties' arguments, the Court reconsiders its ruling and now finds merit in petitioners' assertion that the case should have been dismissed for being moot and academic, and that the aforesaid exceptions to the said rule should not have been applied.

I. On the paramount public interest exception.

Jurisprudence in this jurisdiction has set no hard-and-fast rule in determining whether a case involves paramount public interest in relation to the mootness principle. However, a survey of cases would show that, as a common guidepost for application, there should be some perceivable benefit to the public which demands the Court to proceed with the resolution of otherwise moot questions.

In Gonzales v. Commission on Elections,67an action for declaratory judgment assailing the validity of Republic Act No. (RA) 4880,68 which prohibits the early nomination of candidates for elective offices and early election campaigns or partisan political activities became moot by reason of the holding of the 1967 elections before the case could be decided. Nonetheless, the Court treated the petition as one for prohibition and rendered judgment in view of "the paramount public interest and the undeniable necessity for a ruling, the national elections [of 1969] being barely six months away."69

In De Castro v. Commission on Elections,70 the Court proceeded to resolve the election protest subject of that case notwithstanding the supervening death of one of the contestants. According to the Court, in an election contest, there is a paramount need to dispel the uncertainty that beclouds the real choice of the electorate.71

In David v. Macapagal-Arroyo,72the Court ruled on the constitutionality of Presidential Proclamation No. 1017, s. 2006,73 which declared a state of National Emergency, even though the same was lifted before a decision could be rendered. The Court explained that the case was one of exceptional character and involved paramount public interest, because the people's basic rights to expression, assembly, and of the press were at issue.74

In Constantino v. S'andiganbayan,75 both of the accused were found guilty of graft and corrupt practices under Section 3 (e) of RA 3019.76 One of the accused appealed the conviction, while the other filed a petition for certiorari before the Court. While the appellant died during the pendency of his appeal, the Court still ruled on the merits thereof considering the exceptional character of the appeals in relation to each other, i.e., the two petitions were so intertwined that the absolution of the deceased was determinative of the absolution of the other accused.77

More recently, in Funa v. Manila Economic and Cultural Office (MECO),78the petitioner prayed that the Commission on Audit (COA) be ordered to audit the MECO which is based in Taiwan, on the premise that it is a government-owned and controlled corporation.79 The COA argued that the case is already moot and should be dismissed, since it had already directed a team of auditors to proceed to Taiwan to audit the accounts of MECO.80 Ruling on the merits, the Court explained that the case was of paramount public interest because it involved the COA's performance of its constitutional duty and because the case concerns the legal status of MECO, i.e., whether it may be considered as a government agency or not, which has a direct bearing on the country's commitment to the One China Policy of the People's Republic of China.81

In contrast to the foregoing cases, no perceivable benefit to the public - whether rational or practical - may be gained by resolving respondents' petition for Writ of Kalikasan on the merits.

To recount, these cases, which stemmed from herein respondents petition for Writ of Kalikasan, were mooted by the undisputed expiration of the Biosafety Permits issued by the BPI and the completion and termination of the Bt talong field trials subject of the same.82 These incidents effectively negated the necessity for the reliefs sought by respondents in their petition for Writ of Kalikasan as there was no longer any field test to enjoin. Hence, at the time the CA rendered its Decision dated May 17, 2013, the reliefs petitioner sought and granted by the CA were no longer capable of execution.

At this juncture, it is important to understand that the completion and termination of the field tests do not mean that herein petitioners may inevitably proceed to commercially propagate Bt talong.83 There are three (3) stages before genetically-modified organisms (GMOs) may become commercially available under DAO 08-200284 and each stage is distinct, such that "[s]ubsequent stages can only proceed if the prior stage/s [is/]are completed and clearance is given to engage in the next regulatory stage."85 Specifically, before a genetically modified organism is allowed to be propagated under DAO 08-2002: (a) a permit for propagation must be secured from the BPI; (b) it can be shown that based on the field testing conducted in the Philippines, the regulated article will not pose any significant risks to the environment; (c) food and/or feed safety studies show that the regulated article will not pose any significant risks to human and animal health; and (d) if the regulated article is a pest-protected plant, its transformation event has been duly registered with the FPA.86

As the matter never went beyond the field testing phase, none of the foregoing tasks related to propagation were pursued or the requirements therefor complied with. Thus, there are no guaranteed after-effects to the already concluded Bt talong field trials that demand an adjudication from which the public may perceivably benefit. Any future threat to the right ,of herein respondents or the public in general to a healthful and balanced ecology is therefore more imagined than real.

In fact, it would appear to be more beneficial to the public to stay a verdict on the safeness of Bt talong - or GMOs, for that matter - until an actual and justiciable case properly presents itself before the Court. In his Concurring Opinion87 on the main, Associate Justice Marvic M.V.F. Leonen (Justice Leonen) had aptly pointed out that "the findings [resulting from the Bt talong field trials] should be the material to provide more rigorous scientific analysis of the various claims made in relation to Bt talong."88 True enough, the concluded field tests ·- like those in these cases – would yield data that may prove useful for future studies and analyses. If at all, resolving the petition for Writ of Kalikasan would unnecessarily arrest the results of further research and testing on Et talong, and even GMOs in general, and hence, tend to hinder scientific advancement on the subject matter.

More significantly, it is clear that no benefit would be derived by the public in assessing the merits of field trials whose parameters are not only unique to the specific type of Bt talong tested, but are now, in fact, rendered obsolete by the supervening change in the regulatory framework applied to GMO field testing. To be sure, DAO 08-2002 has already been superseded by Joint Department Circular No. 1, series of 201689 (JDC 01-2016), issued by the Department of Science and Technology (DOST), the DA, the DENR, the Department of Health (DOH), and the Department of Interior and Local Government (DILG), which provides a substantially different regulatory framework from that under DAO 08-2002 as will be detailed below. Thus, to resolve respondents' petition for Writ of Kalikasan on its merits, would be tantamount to an unnecessary scholarly exercise for the Court to assess alleged violations of health and environmental rights that arose from a past test case whose bearings do not find any - if not minimal -- relevance to cases operating under today's regulatory framework.

Therefore, the paramount public interest exception to the mootness rule should not have been applied.1âwphi1

II. The case is not one capable of repetition vet evading review.

Likewise, contrary to the Court's earlier ruling,90 these cases do not fall under the "capable of repetition yet evading review" exception.

The Court notes that the petition for Writ of Kalikasan specifically raised issues only against the field testing of Bt talong under the premises 'of DAO 08,..2002,91 i.e., that herein petitioners failed to: (a) fully inform the eople regarding the health, environment, and other hazards involved;92 and (b) conduct any valid risk assessment before conducting the field trial.93 As further pointed out by Justice Leonen, the reliefs sought did not extend far enough to enjoin the use of the results of the field trials that have been completed. Hence, the petition's specificity prevented it from falling under the above exception to the mootness rule.94

More obviously, the supersession of DAO 08-2002 by JDC 01-2016 clearly prevents this case from being one capable of repetition so as to warrant review despite its mootness. To contextualize, JDC 01-2016 states that:

Section 1. Applicability. This Joint Department Circular shall apply to the research, development, handling and use, transboundary movement, release into the environment, and management of genetically-modified plant and plant products derived from the use of modern technology, included under "regulated articles."

As earlier adverted to, with the issuance of JDC 01-2016, a new regulatory framework in the conduct of field testing now applies.

Notably, the new framework under JDC 01-2016 is substantially different from that under DAO 08-2002. In fact, the new parameters in JDC 01-2016 pertain to provisions which prompted the Court to invalidate D'AO 08-2002. In the December 8, 2015 Decision of the Court, it was observed that: (a) DAO 08-2002 has no mechanism to mandate compliance with inten1ational biosafety protocols;95 (b) DAO 08-2002 does not comply with the transparency and public participation requirements under the NBF;96 and (c) risk assessment is conducted by an informal group, called the Biosafety Advisory Team of the DA, composed of representatives from the BPI, Bureau of Animal Industry, FPA, DENR, DOH, and DOST.97

Under DAO 08-2002, no specific guidelines were used in the conduct of risk assessment, and the DA was allowed to consider the expert advice of, and guidelines developed by, relevant inteniational organizations and regulatory authorities of countries with significant experience in the regulatory supervision of the regulated article.98 However, under JDC 01-2016, the CODEX Alimentarius Guidelines was adopted to govern the risk assessment of activities involving the research, development, handling and use, transboundary movement, release into the environment, and management of genetically modified plant and plant products derived from the use of modem biotechnology.99 Also, whereas DAO 08-2002 was limited to the DA's authority in regulating the importation and release into the environment of plants and plant products derived from the use of modern biotechnology,100 under JDC 01-2016, various relevant government agencies such as the DOST, DOH, DENR, and the DILG now participate in all stages of the biosafety decision-making process, with the DOST being the central and lead agency.101

JDC 01-2016 also provides for a more comprehensive avenue for public participation in cases involving field trials and requires applications for permits and permits already issued to be made public by posting them online in the websites of the NCBP and the BPI.102 The composition of the Institutional Biosafety Committee (IBC) has also been modified to include an elected local official in the locality where the field testing will be conducted as one of the community representatives.103 Previously, under DAO 08-2002, the only requirement for the community representatives is that they shall not be affiliated with the applicant and shall be in a position to represent the interests of the communities where the field testing is to be conducted.104

JDC 01-2016 also prescribes additional qualifications for the members of the Scientific and Technical Review Panel (STRP), the pool of scientists that evaluates the risk assessment submitted by the applicant for field trial, commercial propagation, or direct use of regulated articles. Aside from not being an official, staff or employee of the DA or any of its attached agencies, JDC 01-2016 requires that members of the STRP: (a) must not be directly or indirectly employed or engaged by a company or institution with pending applications for pennits under JDC 01-2016; (b) must possess technical expertise in food and nutrition, toxicology, ecology, crop protection, environmental science, molecular biology and biotechnology, genetics, plant breeding, or animal nutrition; and (c) must be well-respected in the scientific community.105

Below is a tabular presentation of the differences between the relevant portions of DAO 08-2002 and JDC 01-2016:

DAO 08-2002	JDC 01-2016
1. As to coverage and government participation
WHEREAS, under Title IV, Chapter 4, Section 19 of the Administrative Code of 1987, the Department of Agriculture, through the Bureau of Plant Industry, is responsible for the production of improved planting materials and protection of agricultural crops from pests and diseases; and x x x x PART I GENERAL PROVISIONS x x x x PART I GENERAL PROVISIONS xxxx Section 2 Coverage A. Scope - This Order 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 any of the genera or taxa classified by 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 or produced through the use of modern biotechnology which may pose significant risks to human health and the environment based on available scientific and technical information. B. Exceptions. - This Order shall not apply to the contained use of a regulated article, which is within the regulatory supervision of NCBP.	ARTICLE I. GENERAL PROVISIONS Section 1. Applicability. This Joint Department Circular shall apply to the research, development, handling and use, transboundary movement, release into the environment, and management of genetically-modified plant and plant products derived from the use of modern biotechnology, included under "regulated articles." x x x x ARTICLE III. ADMINISTRATIVE FRAMEWORK Section 4. Role of National Government Agencies Consistent with the NBF and the laws granting their powers and functions, national government agencies shall have the following roles: A. [DA]. As the principal agency of the Philippine Government responsible for the promotion of agricultural and rural growth and development so as to ensure food security and to contribute to poverty alleviation, the DA shall take the lead in addressing biosafety issues related to the country's agricultural productivity and food security.x x x. B. [DOST]. As the premier science and technology body in the country, the DOST shall take the lead in ensuring that the best available science is utilized and applied in adopting biosafety policies, measures and guidelines, and in making biosafety decision. x xx. C. [DENR]. As the primary government agency responsible for the conservation management, development and proper use of the country's environment and natural resources, the DENR shall ensure that environmental assessments are done and impacts identified in biosafety decisions. x x x. D. [DOH]. The DOH, as the principal authority on health, shall formulate guidelines in assessing the health impacts posed by modern biotechnology and its applications. x x x. E. [DILG]. The DILG shall coordinate with the DA, DOST, DENR and DOH in overseeing the implementation of this Circular in relation to the activities that are to be implemented in specific LGUs, particulady in relation to the conduct of public consultations as required under the Local Government Code. x x x.
2. As to guidelines in risk assessment
PART I	ARTICLE II. BIOSAFETY DECISIONS
GENERAL PROVISIONS x x x x Section 3 Risk Assessment A. Principles of Risk Assessment - No regulated article shall be allowed to be imported or released into the environment without the conduct of a risk assessment performed in accordance with this Order. The following principles shall be followed when performing a risk assessment to determine whether a regulated article poses significant risks to human health and the environment: 1. The risk assessment 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 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. x x xx	Section 3. Guidelines in Making Biosafety Decisions The principles under the NBF shall guide concerned agencies in making biosafety decisions, including: x x x x B. Risk Assessment. Risk assessment shall be mandatory and central in making biosafety decisions, consistent with policies and standards on risk assessment issued by the NCBP; and guided by Annex III of the Cartagena Protocol on Biosafety. Pursuant to the NBF, the following principles shall be followed when performing a risk assessment to determine whether a regulated article poses significant risks to human health and the environment. 1. The risk assessment 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, CODEX Alimentarius Guidelines on the Food Safety Assessment of Foods Derived from the Recombinant-DNA Plants shall internationally adopted as well as other internationally accepted consensus documents. x x x x (Underscoring supplied)
3. As to public participation
PART III APPROVAL PROCESS FOR FIELD TESTING OF REGULATE ARTICLES x x x x Section 8 Requirements for Field Testing x x x x G. Public Consultation. - The applicant, acting through its IBC, shall notity and invite comments on the field testing proposal from the barangays and city/municipal governments with jurisdiction over the field test sites. The IBC shall post for three (3) consecutive weeks copies of the Public Information Sheet for Field Testing approved by the BPI in at least three (3) conspicuous places in each of the concerned barangay and city/municipal halls. The Public Information Sheet for Field Testing shall, among others, invite interested parties to send their comments on the proposed field testing to BPI within a period of thirty (30) days from the date of posting. It shall be m a language understood in the community. During the comment period, any interested person may submit to BPI written comments regarding the application. The applicant shall submit proof of posting in the form of certifications from the concerned barangay captains and city/municipal mayors or an affidavit stating the dates and places of posting duly executed by the responsible officer or his duly authorized representative.	ARTICLE V. FIELD TRIAL OF REGULATED ARTICLES Section 12. Public Participation for Field Trial A. The BPI shall make public all applications and Biosafety Permits for Field Trial through posting on the NCBP and BPI websites, and in the offices of the DA and DOST in the province, city, or municipality where the field trial will be conducted. x x xx
4. As to membership in the Institutional Biosafety Committee
PART I GENERAL PROVISIONS Section 1 Definition of Terms x x x x L. "IBC" means the Institutional Biosafety Committee established by an applicant in preparation for the field testing of a regulated article and whose membership has been approved by BPI. The JBC shall be responsible for the initial evaluation of the risk assessment and risk management strategies of the applicant for field testing. It 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. The other members, who shall be designated as "community representatives", shall not be affiliated with the applicant apart from being members of its IBC and shall be in a position to represent the interests of the communities where the field testing is to be conducted. For the avoidance of doubt, NCBP shall be responsible for approving the membership of the IBC for contained use of a regulated article. x x x x (Underscoring supplied)	ARTICLE III. ADMINISTRATIVE FRAMEWORK x x x x Section 6. Institutional Biosafety Committee The company or institution applying for and granted permits under this Circular shall constitute an IBC prior to the contained use, confined test, or field trial of a regulated article. The membership of the IBC shall be approved by the DOST-BC for contained use or confined test, or by the DA-BC for field trial. The IBC is responsible for the conduct of the risk assessment and preparation of risk management strategies of the applicant for contained use, confined test, or field trial. It shall make sure that the environment and human health are safeguarded in the conduct of any activity involving regulated articles. The IBC shall be composed of at least five (5) members, three (3) of whom shall be designated, as scientist-members and two (2) members shall be community representatives. All scientist-members must possess scientific or technological knowledge and expertise sufficient to enable them to property evaluate and monitor any work involving regulated articles conducted by the applicant. The community regresentative must not be affiliated with the applicant, and must be in a position to regresent the interests of the communities where the activities are to be conducted. One of the community regresentatives shall be an elected official of the LGU. The other community representative shall be selected from the residents who are members of the Civil Society Organizations represented in the Local Poverty Reduction Action Team, pursuant to DILG Memorandum Circular No. 2015-45. For multi-location trials, community representatives of the IBC shall be designated per site. x x x. (Underscoring supplied)
5. As to the composition and qualifications of the members of the Scientific and Technical Review Panel
PART I GENERAL PROVISIONS Section 1 Definition of Terms x x x x EE. "STRP" means the Scientific and Technical Review Panel created by BPI as an advisory body, composed of at least three (3) reputable and independent scientists who shall not be employees of the Department and who have the relevant professional background necessary to evaluate the potential risks of the proposed activity to human health and the environment based on available scientific and technical information. x x x x (Underscoring supplied)	ARTICLE III. ADMINISTRATIVE FRAMEWORK x x x x Section 7. Scientific and Technical Review Panel (STRP) The DA shall create a Scientific and Technical Review Panel composed of a pool of non-DA scientists with expertise in the evaluation of the potential risks of regulated articles to the environment and health. x x x x x x x The DA shall select scientists/experts in the STRP, who shall meet the following qualifications: A. Must not be an official, staff or employee of the DA or any of its attached agencies; B. Must not be directly or indirectly employed or engaged by a company or institution with pending applications for permits covered by this Circular; C. Possess technical expertise in at least one of the following fields: food and nutrition; toxicology, ecology, crop protection, environmental science, molecular biology and biotechnology, genetics, plant breeding, animal nutrition; and D. Well-respected in the scientific community as evidenced by positions held in science-based organizations, awards and recognitions, publications in local and international peer-reviewed scientific journals. x x x x (Underscoring supplied)

Based on the foregoing, it is apparent that the regulatory framework now applicable in conducting risk assessment in matters involving the research, development, handling, movement, and release into the environment of genetically modified plant and plant products derived from the use of modem biotechnology is substantially different from that which was applied to the subject field trials. In this regard, it cannot be said that the present case is one capable of repetition yet evading review.

The essence of cases capable of repetition yet evading review was succinctly explained by the Court in Belgica v. Ochoa, Jr.,106 where the constitutionality of the Executive Department's lump-sum, discretionary funds under the 2013 General Appropriations Act, known as the Priority Development Assistance Fund (PDAF), was assailed. In that case, the Court rejected the view that the issues related thereto had been rendered moot and academic by the reforms undertaken by the Executive Department and former President Benigno Simeon S. Aquino III's declaration that he had already "abolished the PDAF." Citing the historical evolution of the ubiquitous Pork Barrel System, which was the source of the PDAF, and the fact that it has always been incorporated in the national budget which is enacted annually, the Court ruled that it is one capable of repetition yet evading review, thus:

Finally, the application of the fourth exception [to the rule on mootness] is called for by the recognition that the preparation and passage of the national budget is, by constitutional imprimatur, an affair of annual occurrence. The relevance of the issues before the Court does not cease with the passage of a "PDAF-free budget for 2014." The evolution of the "Pork Barrel System," by its multifarious iterations throughout the course of history, lends a semblance of truth to petitioners' claim that "the same dog will just resurface wearing a different collar." In Sanlakas v. Executive Secretary, the government had already backtracked on a previous course of action yet the Court used the "capable of repetition but evading review" exception in order "[t]o prevent similar questions from re-emerging." The situation similarly holds true to these cases. Indeed, the myriad of issues underlying the manner in which certain public funds are spent, if not resolved at this most opportune time, are capable of repetition and hence; must not evade judicial review.107 (Emphases supplied)

Evidently, the "frequent" and "routinary" nature of the Pork Barrel Funds and the PDAF are wanting herein. To reiterate, the issues in these cases involve factual considerations which are peculiar only to the controversy at hand since the petition for Writ of Kalikasan is specific to the field testing of Bt talong and does not involve other GMOs.

At this point, the Court discerns that there are two (2) factors to be considered before a case is deemed one capable of repetition yet evading review: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration; and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action.

Here, respondents cannot claim that the duration of the subject field tests was too short to be fully litigated. It must be emphasized that the Biosafety Permits for the subject field tests were issued on March 16, 2010 and June 28, 2010, and were valid for two (2) years. However, as aptly pointed out by Justice Leonen, respondents filed their petition for Writ of Kalikasan only on April 26, 2012 - just a few months before the Biosafety Permits expired and when the field testing activities were already over.108 Obviously, therefore, the cessation of the subject field tests before the case could be resolved was due to respondents' own inaction.

Moreover, the situation respondents complain of is not susceptible' to repetition. As discussed above, DAO 08-2002 has already been superseded by JDC 01-2016. Hence, future applications for field testing will be governed by JDC 01-2016 which, as illustrated, adopts a regulatory framework that is substantially different from that of DAO 08-2002.

Therefore, it was improper for the Court to resolve the merits of the case which had become moot in view of the absence of any valid exceptions to the rule on mootness, and to thereupon rule on the objections against the validity and consequently nullify DAO 08-2002 under the premises of the precautionary principle.

In fact, in relation to the latter, it is observed that the Court should not have even delved into the constitutionality of DAO 08-2002 as it was merely collaterally challenged by respondents, based on the constitutional precepts of the people's rights to infonnation on matters of public concern, to public participation, to a balanced and healthful ecology, and to health.109 A cursory perusal of the petition for Writ of Kalikasan filed by respondents on April 26, 2012 before the Court shows that they essentially assail herein petitioners' failure to: (a) fully infom1 the people regarding the health, environment, and other hazards involved;110 and (b) conduct any valid risk assessment before conducting the field trial.111 However, while the provisions of DAO 08-2002 were averred to be inadequate to protect (a) the constitutional right of the people to a balanced and healthful ecology since "said regulation failed, among others, to anticipate 'the public implications caused by the importation of GMOs in the Philippines"';112and (b) "the people from the potential harm these genetically modified plants and genetically modified organisms may cause human health and the environment, [and] thus, x x x fall short of Constitutional compliance,"113 respondents merely prayed for its amendment, as well as that of the NBF, to define or incorporate "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[.]"114 This attempt to assail the constitutionality of the public info1mation and consultation requirements under DAO 08-2002 and the NBF constitutes a collateral attack on the said provisions of law that runs afoul of the wdlsettled rule that the constitutionality of a statute cannot be collaterally attacked as constitutionality issues must be pleaded directly and not collaterally.115 Verily, the policy of the courts is to avoid ruling on constitutional questions and to presume that the acts of the political departments are valid, absent a clear and unmistakable showing to the contrary, in deference to the doctrine of separation of powers. This means that the measure had first been carefuliy studied by the executive department and found to be in accord with the Constitution before it was finally enacted and approved.116

All told, with respondents' petition for Writ of Kalikasan already mooted by the expiration of the Biosafoty Permits and the completion of the field trials subject of these cases, and with none of the exceptions to the mootness principle properly attending, the Court grants the instant motions for reconsideration and hereby dismisses the aforesaid petition. With this pronouncement, no discussion on the substantive merits of the same should be made.

WHEREFORE, the motions for reconsideration are GRANTED. The Decision dated December 8, 2015 of the Court, which affirmed with modification the Decision dated May 17, 2013 and the Resolution dated September 20, 2013 of the Court of Appeals in CA-G.R. SP No. 00013, is hereby SET ASIDE for the reasons above-explained. A new one is ENTERED DISMISSING the Petition for Writ of Continuing Mandamus and Writ of Kalikasan with Prayer for the Issuance of a Temporary Environmental Protection Order (TEPO) filed by respondents Greenpeace Southeast Asia (Philippines), Magsasaka at Siyentipiko sa Pagpapaunlad ng Agrikultura, and others on the ground of mootness.

SO ORDERED.

ESTELA M. PERLAS-BERNABE
Associate Justice

1. Constitutional Policy and Framework on Environmental Protection The 1987 Philippine Constitution bears the framework of the Philippine Environmental Policy. In fact, the Preamble of the Constitution itself already lays down the foundation for the environmental provisions in the 1987 Constitution. The Preamble reads as: We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society, and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity, the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.79 Our fundamental right to a healthy environmental, however, is primarily embodied in Section 16, Article II of the Constitution which states, “[t]he State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.”80 This provision is selfexecuting in nature and deemed as the source of the citizen’s basic environmental rights.81 The duty of the state to protect and promote the health of its citizens is also an adjunct to the right of the Filipinos to a healthy environment. Other constitutional provisions also serve as basis for several environmental laws. Section 15, Article II of the Constitution states that, “[t]he State shall protect and promote the right to health of the people and instill health consciousness among them.”82 Most of the provisions of Article XII also highlight the State’s primary objective of protecting the environmental resources of the country. Sections 2,

3,84 4,85 and 586 all seek to protect the country’s land from abuse and exploitation and ensure that the development of the country’s natural resources will benefit the Filipino people. Even prior to the 1987 Constitution, Presidential Decree No. 115187 or the Philippine Environmental Policy declares as a continuing policy of the state: a. to create, develop, maintain, and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other; b. to fulfill the social, economic and other requirements of present and future generations of Filipino; and c. to ensure the attainment of an environmental quality that is conducive to a life of dignity and well-being.

Presidential Decree No. 1151 recognizes that the environment is a matter of government responsibility. Aiming to launch a comprehensive program of environmental protection and management, the law covered the following areas of concern: air quality management, water management, land use management, natural resources management and conservation and waste management. At present, Philippine Environmental Law seeks to address a wide array of environmental concerns ranging from forest degradation, loss of biodiversity, water pollution, air pollution, and hazardous waste management among others. The following laws, which are enumerated in the Rules of Procedure for Environmental Cases,89 are classified into four groups: (1) terrestrial; (2) marine and aquatic resources; (3) aerial; and (4) others. Terrestrial laws refer to the protection and preservation of forests and biodiversity. Marine and aquatic resources laws pertain to the protection of the waters and preservation of marine life. Aerial laws deal with preventing air pollution, while other laws refer to those that involve hazardous wastes and other environmental concerns. 

2. Terrestrial Laws

Act No. 357290 is a law enacted by Congress in 1929 specifically addressing the need to preserve certain types of trees, namely Tindalao, Akle, and Molave, which were fast disappearing during the Spanish Era. This law criminalizes the act of cutting down these types of trees. Presidential Decree No. 705 or the Revised Forestry Codeof the Philippines91 is the law most often violated in environmental cases before the courts. This law regulates the management, development, and utilization of forest lands. It establishes the boundaries of forest lands and lays down the guidelines for licenses and permits for the occupation and utilization of forest lands and operation of wood or forest processing plant. It also introduces the concept of reforestation in order to preserve the country’s forest lands. Presidential Decree No. 1433 or the Plant Quarantine Decree of 197892 was promulgated to prevent the spread of plant pests by regulating the international and domestic movements of plants and plant products. It therefore serves as a preventive measure against the introduction or incursion of plant pests into our country that may result in the destruction of the country’s agricultural crops. Republic Act No. 357193 was enacted by Congress to promote and conserve the trees, shrubs, flowering plants, and plants of scenic value which are planted in public areas such as parks and public schools or along public roads. Its primary objective is to preserve the cool, fresh, and healthful climate of public spaces and to ensure that the plants in these areas are not cut down, injured, or destroyed. Republic Act No. 7076 or the People’s Small-Scale Mining Act of 199194 was promulgated to promote and develop viable small-scale mining activities in the country in order to generate more employment opportunities. It recognizes the need to lay down guidelines for a systematic and orderly implementation of small-scale mining activities and utilization of mineral resources such as: the recognition of easement and ownership rights, the formation of regulatory boards, and the protection of land areas. Republic Act No. 7586 or the National Integrated Protected Areas System Act of 199295 was enacted to establish integrated protected areas in recognition of the critical importance of protecting the country’s diverse natural resources in the environment from an increasing population. The areas established are notable for their biological uniqueness and significance. These protected areas are classified as strict nature reserve, natural park, natural monument, wildlife sanctuary, protected landscapes and seascapes, resource reserve, natural biotic areas, and other categories that may be established under international agreements. As of this time, there are 12 republic acts involving the creation of protected areas in the country. These are: a. RA No. 8978 or the Mt. Kitanglad Range Protected Area Act of 2000; b. RA No. 8991 or the Batanes Protected Area Act of 2000; c. RA No. 9106 or the Sagay Marine Reserve Law; d. RA No. 9125 or the Northern Sierra Madre Natural Park Act of 2001; e. RA No. 9154 or the Mt. Kanla-on Natural Park Act of 2001; f. RA No. 9237 or the Mt. Apo Protected Area Act of 2003; g. RA No. 9303 or the Mt. Hamiguitan Range Wildlife Sanctuary Act of 2004; h. RA No. 9304 or the Mt. Malindang Range Natural Park Act of 2004; i. RA No. 9486 or the Central Cebu Protected Landscape Act of 2007; j. RA No. 9494 or the Mimbilisan Protected Landscape Act; k. RA No. 9847 or the Mts. Banahaw-San Cristobal Protected Landscape Act of 2009; and l. RA No. 10067 or the Tubbataha Reefs Natural Park Act of 2009. The Tubbataha Reefs Natural Park Act of 200996 was promulgated to ensure the protection and conservation of the globally significant value of the Tubbataha Reefs in Palawan. This is achieved by implementing a no-take policy in the area and ensuring sustainable and participatory management. In addition, widespread awareness of the preservation and conservation efforts of the Tubbatahan Reefs is promoted by the law. Republic Act No. 7611 or the Strategic Environmental Plan (SEP) for Palawan Act,97 primarily focuses on the implementation of environmental programs for Palawan. In recognition of Palawan’s unique landscape and richness of its natural resources, it has become the policy of the State to specifically protect, preserve, and develop its natural resources. The SEP provides a comprehensive framework for the sustainable development of Palawan. 

Republic Act No. 7942 or the Philippine Mining Act of 199598 is often cited in environmental cases. Its primary objective is to regulate the exploration, development, utilization, and conservation of all mineral resources in both public and private lands. It lays down safeguards and regulations in order to ensure the preservation of the environment and the protection of the rights of affected communities where mining activities are present. Republic Act No. 9072 or the National Caves and Cave Resource Management99 and Protection Act was enacted to conserve, protect, and manage caves and cave resources as part of the country’s natural wealth. It aims to strengthen cooperation and exchange of information between governmental authorities and people who utilize caves and cave resources for scientific, educational, recreational, tourism, and other purposes. Republic Act No. 9147 or the Wildlife Resources Conservation and Protection Act100 was promulgated to conserve and protect wildlife species and their habitats to promote ecological balance and enhance biological diversity. It also lays down the framework for the regulation of the collection and trade of wildlife and the initiation or support of scientific studies involving the conservation of biological resources. It therefore strengthens the Philippine’s commitment to the protection of the country’s wildlife and their habitats. Republic Act No. 9175 or the Chain Saw Act of 2002101 specifically addresses the need to eliminate illegal logging and other forms of forest destruction which are often facilitated by the use of chain saws. It therefore regulates the ownership, possession, sale, transfer, importation and/or use of chain saws to prevent them from being used in illegal logging or unauthorized clearing of forests. 

3. Marine and Aquatic Resources Laws

Presidential Decree No. 979 or the Marine Pollution Decree of 1976102 was issued in recognition of the vital importance of the marine environment and the need to address the growing marine pollution in the country. The law prevents the further destruction of the marine environment by penalizing certain acts that cause marine pollution, such as dumping and discharging to rivers, brooks, and springs. Presidential Decree No. 1067 or the Water Code of the Philippines103 was promulgated in 1976 in order to consolidate the various water legislations. It establishes the framework for the appropriation, utilization, control, and conservation of water resources in the country in recognition of the increasing scarcity of water supply and resources. The law therefore seeks to provide proper management of the country’s water resources to sufficiently meet future developments and needs. Republic Act No. 4850 or the Laguna Lake Development Authority Act104 was specifically created to establish a government body tasked with the protection and development of the Laguna Lake area. This law enumerates the powers and functions of such governing body in recognition of the need to properly manage the growth and development of the surrounding cities, provinces, and towns in the Laguna Lake area. Republic Act No. 8550 or the Philippine Fisheries Code of 1998105 was enacted by Congress to protect and conserve the fishing grounds in the country. It aims to achieve food security by limiting access to the fishery and aquatic resources of the Philippines, managing and developing the fishing areas in the country, supporting the fishery sector, and protecting the rights of fisherfolk. It strictly penalizes specific acts to ensure that environmental damage to fishing and aquatic areas are minimized, if not, eliminated. Republic Act No. 9275 or the Philippine Clean Water Act of 2004106 aims to preserve, and revive the quality of the country’s fresh, brackish, and marine waters by promoting environmental strategies geared towards the protection of water resources. It also formulates an integrated water quality management framework for the utilization and development of the country’s water supply and for the prevention of water pollution.

Republic Act No. 9483 or the Oil Pollution Compensation Act of 2007107 was enacted by Congress to bring to life the provisions of the 1992 International Convention on Civil Liability for Oil Pollution Damage and the 1992 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage. This law recognizes the need to protect the country’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone. It adopts internationally accepted measures which impose strict liability for oil pollution damage and provides for a system of accessing an international fund which was established to compensate those who suffer damage caused by a tanker spill of cargo oil. 

4. Aerial Law

Republic Act No. 8749 or the Philippine Clean Air Act of 1999108 espouses the constitutional right of the people to a balanced and healthful ecology. In recognition of the dangers of air pollution and the need for a clean habitat and environment, the law provides for an integrated air quality improvement framework designed to implement a management and control program to reduce emissions and prevent air pollution. It also provides for an air quality control action plan that shall be implemented to enforce appropriate devices, methods, systems, and measures to ensure air quality control. 

5. Other Laws

Presidential Decree No. 856 or the Code on Sanitation of the Philippines109 recognizes that the health of the people is of paramount importance; therefore, there is a need to improve public services that are directed towards the protection and promotion of health. The law provides guidelines for sanitary

conditions of food establishments, public laundry, schools, public swimming or bathing places, bus stations, and more. The Department of Health (DOH) is tasked to regulate the proper sanitation conditions and monitor the covered premises for violations of sanitary conditions as provided for in this law. Republic Act No. 6969 or the Toxic Substances and Hazardous and Nuclear Wastes Control Act of 1990110 was enacted by Congress to regulate, restrict, or prohibit the importation, manufacture, processing, sale, distribution, use and disposal of chemical substances and mixtures that present unreasonable risk and/or injury to health or the environment. It also prohibits the entry of hazardous materials and nuclear wastes into the country. Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997111 is also treated as an Environmental Law by virtue of its provisions protecting the ancestral domains and imposing the requirement upon project proponents to secure the Free Prior and Informed Consent of the affected Indigenous Peoples before the utilization of natural resources over their ancestral domains can be made. Republic Act No. 9003 or the Ecological Solid Waste Management Act of 2000112 recognizes the State’s crucial responsibility to adopt a systematic, comprehensive and ecological solid waste management program. This is to ensure the protection of public health and the environment. The law sets guidelines and targets for solid waste avoidance and volume reduction and aims to ensure the proper segregation, collection, transport, storage, treatment and disposal of solid waste. Republic Act No. 9729 or the Philippine Climate Change Act of 2009113 is a new development in Environmental Law. It declares as a policy of the State to “systematically integrate the concept of climate change in various phases of policy formulation, development plans, poverty reduction strategies and other developmental tools and techniques by all agencies and instrumentalities of the government.”114 6. Provisions in Other Laws Some laws contain provisions which are within the ambit of Environmental Law. Similar to the other laws previously cited, the applicable provisions of the following laws are also governed by the Rules of Procedure for Environmental Cases:

a. Commonwealth Act No. 141, The Public Land Act116 b. Republic Act No. 6657, Comprehensive Agrarian Reform Law of 1988117 c. Republic Act No. 7160, The Local Government Code118 d. Republic Act No. 7161, Tax laws incorporated in the Revised Forestry Code and other environmental laws119 e. Republic Act No. 7308, Seed Industry Development Act of 1992120 f. Republic Act No. 7900, High Value Crops Development Act121 g. Republic Act No. 8048, Coconut Preservation Act122 h. Republic Act No. 8435, Agriculture and Fisheries Modernization Act of 1997123 i. Republic Act No. 9522, The Philippine Archipelagic Baselines Law124 j. Republic Act No. 9513, Renewable Energy Act of 2008125 k. Republic Act No. 9367, Biofuels Act of 2006

7. Supplemental Laws Apart from the general environmental laws, the Civil Code provisions on the abuse of rights, abatement of nuisance, easements and torts may also be used as a supplement to the general environmental laws in claiming damages.127 a. Chapter Two on Human Relations The Civil Code provisions on human relations seek to protect the rights and dignity of every person. It lays down the general basis for recovery of damages when there is bad faith or malice or if injury is inflicted upon a party, whether intentional or not, in ordinary contractual relationships between persons. In the absence of specific environmental laws to support one’s claims for damages, the provisions on human relations can act as a supplement and serve as a legal basis. This covers Articles 19 to 28 of the Civil Code of the Philippines. b. Abatement of Nuisance Nuisance is defined as an “unreasonable activity or condition on the defendant’s land which substantially or unreasonably interferes with the plaintiff’s use and enjoyment of his property.”128 The provisions on nuisance may be used by plaintiffs to recover damages for environmental harm in the absence of or in addition to the applicable provisions in our environmental laws. 129 The application of the Civil Code provisions on the abatement of nuisance does not require a physical invasion of property.130 Among the typical nuisance-causing agents are noise, dust, smoke, odors, airborne, or water-borne contaminants, and vermin and insects. Accordingly, plaintiffs may recover damages for injury caused by noise, dust, hazardous particles released by incinerators or oil refineries or those arising from groundwater contamination.131 Nuisance has two distinct branches: private and public. Private nuisance stems from interference on an individual’s rights. Public nuisance stems from violations of public rights and causes pervasive and widespread harm.132 The Civil Code provisions on nuisance are found in Articles 694 to 707 of Title VIII of the Civil Code of the Philippines. c. Easements Easement is defined as “an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner.”133 In terms of use, an easement may either be continuous or discontinuous; and by its creation, an easement is established either by law (legal

easement) or by the will of the parties (voluntary easement).134 Easements are in the nature of an encumbrance on the servient estate or the estate on which the easement is made, thus constituting a limitation on the dominical right of the owner of the subjected property. They can be acquired only by title and by prescription.135 The Civil Code provisions on easements may serve as legal basis for the recovery of environmental damages when flow of water, right of way, light and view, and drainage are disrupted. The general provisions on easements are found in Articles 634 to 636. Provisions on easements relating to waters are from Articles 637 to 648. Provisions on easement of right of way are from Articles 649 to 652. Provisions on easement of light and view are from Articles 667 to 673. Provisions on drainage of buildings are from Articles 674 to 676. Lastly, provisions on intermediate distances and works for certain constructions and plantings are from Articles 677 to 681. d. Torts/Quasi-Delict Where the act complained of does not fall under a specific violation of Environmental Law and there is evidence of recklessness or negligence resulting in harm to the environment, the Civil Code provisions on quasi-delict may apply. There is negligence when a person’s conduct lacks the diligence required by the nature of the obligation.136 Recklessness is conduct by a defendant which demonstrates a conscious disregard for a known risk of probable harm to others.137 Under the rules on quasi-delict, the basic legal duty is to act with reasonable care.138 A party may be held liable for activities which result in harm to others even though he did not act intentionally in causing the harm.139 In environmental litigation, negligence is one of the arguments raised by those whose environmental rights are violated.140 The Civil Code provisions on quasidelicts are found in Articles 2176 to 2194.

CHAPTER 2

PRINCIPLES ON THE RIGHT TO THE ENVIRONMENT AND THE DEVELOPMENT OF ENVIRONMENTAL JUSTICE The Right to the Environment is a fundamental right of each person and need not even be written in the Constitution, for this right has existed since the inception of humankind.141 It is only now explicitly incorporated in the Constitution in order to highlight its continuing importance.142 Environmental Justice, meanwhile, is an evolving idea as there is no single universal definition for this simple yet powerful concept. To better understand the concepts of the Right to the Environment and Environmental Justice, this chapter provides a general discussion on the basic principles on the Right to the Environment that underline the Rules of Procedure for Environmental Cases. These principles include: (1) Sovereignty over Natural Resources and the Obligation Not to Cause Harm; (2) Principle of Prevention; (3) Precautionary Principle; (4) Sustainable Development; and (5) Inter-generational Equity. A discussion of these principles is important for a better understanding of what Environmental Law and Environmental Justice are. It also provides an insight as to the very foundation of some of the concepts found in the Rules of Procedure for Environmental Cases. In addition to the discussion of these principles, this chapter also explores the concept of a Rights-based Approach and the development of Environmental Justice in the Philippines. A. Basic Principles on the Right to the Environment 1. Sovereignty Over Natural Resources and the Obligation Not to Cause Harm Since the 1970s, state sovereignty over natural resources is always read with the obligation not to cause harm.143 Principle 21 of the Stockholm Declaration, which is the cornerstone of International Environmental Law,144 reflects these principles: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.145 The sovereign right over natural resources includes the right of the states to be free from external interference.146 The exercise of state sovereignty, however, has its limits. Principle 21 provides that the state has the responsibility not to cause harm beyond the limits of its national jurisdiction.147 The NoHarm Principle recognizes that a state’s activities may be transboundary in nature and is also meant to balance the sovereign principle of states and require them to take responsibility for their actions which cause harm outside their own territory. 2. Principle of Prevention The Principle of Prevention aims to stop environmental damage even before it occurs or when it is critical and potential damage may already be irreversible.148 The Principle of Prevention should be differentiated from the Obligation Not to Cause Harm. The Obligation Not to Cause Harm deals with the effects of a state’s activities outside its own territory without regard to activities that cause environmental harm within the state. The Principle of Prevention encompasses environmental harm within a state’s own territory.149 In applying this principle, action should be taken at an early stage to reduce pollution rather than wait for the irreversible effects to occur. For instance, the discharge of toxic substances in amounts which exceed the capacity that the environment can handle must be halted in order to ensure that no irreversible damage is inflicted. This is done to prevent irreversible harm for it is better to stop the pollution rather than commence efforts to clean the contaminated areas later in the day.150 One of the methods by which this principle is carried out is through the issuance of permits or authorizations that set out the conditions of administrative controls and criminal penalties.151 Another application of this principle is the conduct of an Environmental Impact Assessment (EIA).152 In the Philippines, the governing law in the conduct of an EIA is PD No. 1586 entitled “Establishing An Environmental Impact Statement System, Including Other Environmental Management Related Measures and for Other Purposes.”153 The Principle of Prevention is based on the idea that it is better to prevent than employ measures, after harm has occurred, in order to restore the environment. This principle has been expanded by a relatively new principle – the Precautionary Principle.

3. Precautionary Principle Principle 15 of the Rio Declaration, commonly known as the Precautionary Principle states: 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.154 This principle advocates that the potential harm should be addressed even with minimal predictability at hand.155 The Precautionary Principle requires a high degree of prudence on the part of the stakeholders. Decision makers are not only mandated to account for scientific uncertainty but can also take positive action, e.g., restrict a product or activity even when there is scientific uncertainty.156 Under Rule 20 of the Rules of Procedure for Environmental Cases, the Precautionary Principle is adopted as a rule of evidence. The Supreme Court’s adoption of the Precautionary Principle in the newly promulgated Rules of Procedure for Environmental Cases affords plaintiffs a better chance of proving their cases where the risks of environmental harm are not easy to prove.

4. Sustainable Development Sustainable Development is the process of developing land, cities, businesses, communities, and so forth that “meets the needs of the present without compromising the ability of future generations to meet their own needs.”158 The concept of Sustainable Development carries two key concepts. First, is the existence of needs with particular focus to the needs of the poor. Second, is that the environment has limitations in meeting the needs of present and future generations.159 The Principle of Sustainable Development addresses the need to reconcile issues of development and environmental protection.160 It recognizes that development requires economic exploitation to satisfy the needs of the growing population while at the same time protecting the environment for future generations. The concept of sustainable development seeks to achieve exploitation of resources while leaving the environment intact for the use of future generations.161 Non-renewable resources must be used as efficiently as possible.162 According to this principle, there must be optimal management of natural resources. 163 The Principle of Sustainable Development is embodied in the Philippine Agenda 21 which was formulated as a response to the country’s commitments in the 1992 Earth Summit in Rio de Janeiro, Brazil. 5. Intergenerational Equity The concept of Intergenerational Equity supports the Principle of Sustainable Development with respect to holding the natural resources in trust for future generations.164 Nevertheless, this principle does not stop there. Inter-generational Equity is defined as “each generation’s responsibility to leave an inheritance of wealth no less than what they themselves have inherited.”165 In the landmark case of Oposa v. Factoran, 166 the Supreme Court had the occasion to discuss the concept of Intergenerational Responsibility. The case was instituted by minors along with their parents alleging that then Secretary of Natural Resources Fulgencio Factoran acted with grave abuse of discretion in issuing Timber License Agreements (TLAs) to cover more areas. Respondents alleged that the minors,

who invoked the right to a balanced and healthful ecology, had no valid cause of action. On the issue of petitioner’s standing, the Honorable Court held that the minors were entitled to sue on the basis of Inter-generational Responsibility. The Supreme Court through Justice Davide explained: This case, however, has a special and novel element. 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.167 B. Rights-based Approach Environmental Justice stems from a growing recognition that the Right to the Environment is a fundamental human right which ought to be protected. The Rights-based Approach in Environmental Justice is reflected in various international instruments. The Universal Declaration of Human Rights provides for the “right to a standard of living adequate for health and well-being.”168 The right carries with it the Right to the Environment. Later on, the Stockholm Declaration, which is the primary document in International Environmental Law, would state in clear and express terms the Right to the Environment. Principle 1 of the Stockholm Declaration states: Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations. In this respect, policies promoting or perpetuating apartheid, racial segregation, discrimination, colonial and other forms of oppression and foreign domination stand condemned and must be eliminated.169 Subsequently, the Rio Declaration170 contained 27 principles with a goal of ensuring the protection of the environment and promoting Sustainable Development. Principle 1 recognizes that human beingsare “the center of concerns for sustainable development.”171 The Rio Declaration underlines the obligations of states not to cause harm beyond their jurisdiction,172 to meet the environmental needs of present and future generations,173 and to consider environmental protection as an integral part of development.174 The Rio Declaration also mandates states to eradicate poverty175 and to give special attention to the least developed and environmentally vulnerable countries176 emphasizing that in the cooperative process, states have common but differentiated responsibilities.177 The Rio Declaration recognizes the importance of enjoining the citizens in addressing environmental issues178 with particular emphasis on the role of women,179 youth180 and Indigenous Peoples181 in achieving sustainable development. Under the Rights-based Approach, the right of persons to environmental protection has the same level as basic human rights.182 The adoption of this approach plays a crucial role in litigation because persons would be allowed to litigate on the basis of their right to a healthy environment in the same way that they can litigate for violations of their civil and socio-economic rights.183 In line with the Rights-based Approach, there is a growing trend towards achieving Environmental Justice. Presently, the concept of Environmental Justice varies among groups. Some define Environmental Justice as “the goal of achieving adequate protection from the harmful effects of environmental agents for everyone, regardless of age, culture, ethnicity, gender, race, or socioeconomic status.”184 Others view Environmental Justice as “the equitable distribution of burdens of the environmental harms among various groups.”185 One author suggests that there are two fundamental principles of Environmental Justice namely: distributive and procedural justice.186 In Environmental Justice, distributive justice refersto the equitable distribution of environmental risks and harms.187 Procedural justice, on the other hand, focuses on the right of the stakeholders to participate in decision-making processes concerning the environment and enabling them to access relevant information.188 While the concept of Environmental Justice differs depending on the perspective of the individual or entity, the ultimate goal is to enhance the involvement of the people and to ensure access to justice. As a means of addressing these concerns, there is heavy emphasis on the policies, laws, and legal procedures.189 In the context of the judicial system, Environmental Justice is tested in the light of the existence of adequate laws and policies, the quality of its enforcement, and the existence of available remedies for those affected by violations of the environmental laws and regulations. C. Development of Environmental Justice in the Philippines The Right to a Balanced and Healthful Ecology is oftentimes seen as a state policy having been placed under Article II of the 1987 Constitution or the Declaration of State Policies and Principles. The Right to the Environment, however, re-emerges under other constitutional provisions on social justice and human rights both of which are treasured concepts as early as the 1935 Constitution.190 The Right to the Environment also falls under the complete concept of human rights which is sought to be protected by Section 1, Article III of the Constitution.191 Section 1, Article III of the Constitution states that “No person shall be deprived of life, liberty and property without due process of law x x x.192 The right to life means the right to a good life,193 which in turn requires a sound environment. The Supreme Court affirmed the right to a healthy environment as an enforceable right in Oposa v. Factoran. Addressing the issue on whether the right to the environment constitutes a valid cause of action, the Supreme Court stated that the right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment. The Honorable Court cited the plenary session of the 1986 Constitutional Commission in order to show the intent of the framers of the Constitution. Commissioner Azcuna, the proponent of Section 16, Article II answered Commissioner Villacorta’s query in this wise: “[t]he right to healthful (sic) environment necessarily carries with it the correlative duty of not impairing the same and, therefore, sanctions may be provided for impairment of environmental balance."

On the basis of the Right to the Environment, the Supreme Court proceeded to explain the state’s correlative duty of protecting the same. Under Section 4 of EO No. 192,195 the Department of Environment and Natural Resources (DENR) was tasked as the “primary government agency responsible for the conservation, management, development and proper use of the country’s environment and natural resources, specifically forest and grazing lands of the public domain, as well as the licensing and regulation of all natural resources as may be provided for by law in order to ensure equitable sharing of the benefits derived therefrom for the welfare of the present and future generations of Filipinos.”196 While the DENR is designated the lead agency responsible for the conservation, management, development and proper use of the country’s natural resources, this does not mean that the other agencies of the government do not have their corresponding obligations as regards environmental management and protection. In the justice system, the promotion of Environmental Justice is couched in more specific terms. The five pillars of the justice system,197 namely: the community, enforcement, prosecution, judiciary and penology have their respective roles in promoting Environmental Justice. The community is tasked to take an active participation in the promotion and enforcement of environmental laws and in the prevention of environmental damage. The enforcement pillar ensures the prompt and proper enforcement of environmental laws by the arrest of offenders and the seizure and disposition of the prohibited goods or paraphernalia, among other things. The prosecution is tasked with the determination of probable cause for the filing of an information for Environmental Law violations which are criminal in nature and the exercise of other prosecutorial functions. The judiciary is tasked to promulgate rules concerning the judicial remedies available for violations of environmental laws as well as resolve environmental cases filed before the courts. Finally, penology is tasked with the commitment of violators of environmental laws and the adoption of alternative means of sentencing offenders. The Supreme Court plays a crucial role in Environmental Justice. Pursuant to Section 5, Article VIII of the Constitution, the Supreme Court is vested with the power to: (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the under-privileged. Such rule shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

The authority to promulgate rules gives the Supreme Court the totality of administration of justice.199 In 2009, the Supreme Court focused on the Right to a Healthy Environment by conducting a Forum on Environmental Justice in Baguio City, Iloilo City and Davao City. The forum aimed to address issues on the high cost of litigation, adopting innovative rules and ensuring compliance with the decisions of courts.200 The Supreme Court has also taken steps to hasten the process of resolving environmental cases by designating 117 green benches.201 Through the Philippine Judicial Academy, the Supreme Court has established a long term capacity building program for the judges of the designated green benches.202 On April 13, 2010, the Supreme Court promulgated the Rules of Procedure for Environmental Cases. The Rules of Procedure for Environmental Cases is established with the following objectives: a. To protect and advance the constitutional right of the people to a balanced and healthful ecology; b. To provide a simplified, speedy and inexpensive procedure for the enforcement of environmental rights and duties recognized under the Constitution, existing laws, rules and regulations, and international agreements; c. To introduce and adopt innovations and best practices ensuring effective enforcement of remedies and redress for violation of environmental laws; and d. To enable the courts to monitor and exact compliance with orders and judgments in environmental cases.203 In line with these objectives, the Rules of Procedure for Environmental Cases incorporate the following strategies: a. Liberalized legal standing and citizen’s suit; b. Speedy Disposition of Cases; c. Special Remedies in the form of the Writ of Kalikasan, Writ of Continuing Mandamus, Environmental Protection Orders; d. Consent decree; e. Adoption of Strategic Lawsuit Against Public Participation (SLAPP). Clearly recognizing the need to adopt a multi-sectoral framework in addressing environmental issues, the Supreme Court’s next step is the greening of the other pillars of the judicial system namely: the community, enforcement, prosecution, and penology. The participation of these pillars within the framework of Environmental Justice shall be discussed in the succeeding chapters.