Natural Resources and Environmental Law Lecture (2014)

Lectures of Judge Alberto Serrano in Natural Resources and Environmental Law ENVIRONMENTAL LAW A Reminder The protection, preservation, and development of the environment is dictated by man's selfless need to sustain life, it provide a balanced and healthful ecology for the present and future generations. Petition of Atty. Oposa in the case of Minors of the Philippines vs. DENR (224 SCRA 792)

concerning the environment but also to emphasize the fact that access to environmental justice in our country is possible. What is the Philippines? -The Philippines is one of the world’s richest natural resource. -Ranked 14 out of 17 countries in the elite list of mega diversity countries. The list is topped by Australia. Population statistics

"The day would not be too far when all else would be lost not that only for this generation but also for succeeding generations. Generations that would stand to inherit nothing but ___ earth incapable of sustaining life. In that case, the petitioners were compelling the Government to require each barangay to construct a water cashment as a solution to our environmental problem. Environmental justice does not also involve the right to have a healthful ecology but also a right survive. It is a basic human rights and involves social justice because persons who are mostly affected by our current environmental problem are the poor. Human right to. When typhoons, changing weather patterns and flash floods occur, the marginalized sectors are especially affected and are the hardest hit. A broad introduction of the environmental problems in the Philippines highlighting the areas where major problems exist and providing a brief overview of their adverse impact on the country would be taken up. In addition, the constitutional framework and other environmental laws in the country as well as supplemental laws often used to file civil actions and claim damages for environmental damages will be discussed. It is important to explore these laws and present their legal framework not only to provide the basic legal understanding of our

-Australia-17 million -Metro Manila-20 million The Philippines is composed of a diverse variety of flora and fauna as well as aquatic and marine life. The Philippines is an archipelago consisting of 7, 107 islands and a land area of 300, 000 square kilometers. It is replete with mountains and extensive coastal areas. The country is bounded in the east by the Pacific Ocean, in the west by the South China Sea, in the north by the Bashi Channel and in the south by the Sulu and Celebes Sea. The biggest island group is Luzon with an area of 141, 395 square kilometers followed by Mindanao and then by the Visayas with an area of 6, 606 square kilometers. Manila, located in Luzon, is the capital city. The country is known to have a tropical and monsoonal climate dominated by dry and wet seasons. The dry season is from December to May while the wet season is from June to November. 15.8 million hectares of the country is classified as forestlands. The country’s coastline extends to 36, 000 kilometers and have a total of 68 million hectares of territorial waters with around 2.6 million hectares of coral reefs. Furthermore, more than half of the 1, 130 terrestrial wildlife are endemic or can only be found in the country. Approximately, 65% of the 50, 000 species of flora and fauna known in the world can also be found in the country. In addition, nestled in the Philippine waters are 500 of 800 known coral reefs, 2, 000

(2S 2014-2015) Angeles 2014-2015) Angeles,, Richard Armand C., Antonio C., Antonio,, Anna Alyzza, Cabrera, Cabrera, Laarni A., Eleccion, John Robert A., Moscare, Frances O., Narvasa, Narvasa, Jameh Jann R., Pineda, Daniel Radjit D. and Villamil , Carl Ron F.

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Lectures of Judge Alberto Serrano in Natural Resources and Environmental Law marine fish species, more than 40 mangrove species and 16 sea grass species. These should be prospected and preserved for future generations. Present Environmental Problems The Philippine environment is presently in crisis. The country’s rich landscape is experiencing a drastic decline on account of human activities. Most of the country’s forest cover is already depleted and about 23% of the endemic species are threatened with extinction. Moreover, poor environmental quality has adversely affected human health and welfare thereby lowering the quality of life and resulting in productivity loss. The onset of industrialization played a critical role in the increase of environmental problems in the country. The growing need of Filipinos to sustain themselves has clearly taken its toll on the environment. Effluence of waste-industrial waste, human waste, whatever waste both commercial and domestic activities led to increasing levels of water pollution and water scarcity. Human migration resulted to the conversion of forest lands to residential and industrial areas and the demand for transportation services as well as the increase in the number of factories and industrial plants have all contributed to the worsening air pollution. Recent tragedies brought by natural disasters merely highlight this need to intensify efforts to protect and rehabilitate the environment. These concerns must be brought to the forefront of the countries concerned before the effects of human activities to the environment become irreversible. The following are the country’s most serious environmental problems: 1. 2. 3. 4. 5.

Problems Problems Problems Problems Problems

in the Philippine waters in our forestlands due to loss of biodiversity in the aerial territory in the mining sector

Types of pollution: 1. 2. 3. 4.

Air pollution Water pollution Noise pollution Solid waste pollution

A. Problems in the Philippine waters The major problem in the Philippine waters is water pollution. In monetary terms, the adverse effect of water pollution costs the country 67 billion pesos annually. For example, the water quality in the Pasig River before the 1930’s was rich in marine life and sustained communities living along its banks. As years went by, the Pasig River became a dumping site of factories. In 1990, it was declared biologically dead. The Pasig River Rehabilitation Commission was established under EO 54 to rehabilitate the Pasig River. In the National Capital Region, major rivers are polluted both with domestic and industrial effluents such as raw sewage, detergents, fertilizer, heavy metals, chemical products, and oils. In America, you cannot just change oil in your house. Oil would seep to the ground and contaminate the water table, which is a source of clean water. In case of contamination, remediation is needed to remove the oil from the water. Remediation is required when contamination is present, part of America’s clean water code. Our oceans and marine resources are at great risk because water pollution in the form of oil spills (eg. Guimaras Island) and discharges from shipping vessels in both domestic and foreign vessels are present. The most striking, however, is that water pollution affects fresh water availability. Despite being composed mostly of water, the Philippines is experiencing episodes of water scarcity and depletion. As a result, the available fresh water is insufficient to meet the demands of increasing population. Both over extraction of available ground water and the pollution of potential fresh water sources contribute to the decrease of available fresh water. Research shows that if this problem persists, the Philippines will experience a

(2S 2014-2015) Angeles, Richard Armand C., Antonio, Anna Alyzza, Cabrera, Laarni A., Eleccion, John Robert A., Moscare, Frances O., Narvasa, Jameh Jann R., Pineda, Daniel Radjit D. and Villamil , Carl Ron F.

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Lectures of Judge Alberto Serrano in Natural Resources and Environmental Law water crisis in less than 20 years and the amount of fresh water available to each person by 2025 will decrease by 65% of the current per capita availability. This is without considering the fact that industrial demand for fresh water is expected to increase to 13, 000 million cubic meters by 2025 while agricultural water usage is expected to require between 50, 000 and 73, 000 million cubic meters by 2025. The present fresh water availability per capita in the Philippines is only 1, 907 cubic meters which is very low compared to other Asian countries which is 3, 369 cubic meters per person and world averages of 7, 045 cubic meters per person. The per capita availability of fresh water in the Philippines is the lowest in Southeast Asia. The water problem could be ascribed to poor governance, poor planning, fragmented water management, and weak enforcement of environmental laws. To address these issues, stricter effluent standards should be imposed and changes in the lifestyle of people to keep domestic effluent under control. Lawyers are the social doctors of the world. Lawyers are among the three healers in the world. The first are doctors who are physical healers. The second are lawyers who are social healers-they heal social illnesses. Third, are the priests who are spiritual healers. B. Problems in Forest lands Deforestation. The country’s forest cover has dropped from 270, 000 square kilometers at the end of 1998 to only 8, 000 square kilometers in 2006. Increasing authorization of commercial logging, kaingin, slash and burn agriculture, and forest fires all contribute to the deforestation problems. There is also a conversion of grasslands and forestlands to urban use prompted by the growing population. In Singapore, high-rise and even underground mechanisms are utilized. Inconsistent laws, inadequate regulation, weak enforcement and lack of adequate funding play significant roles.

C. Problems due to loss of biodiversity Biodiversity is defined as the variability among living organisms from all sources including among others terrestrial, marine and other aquatic ecosystems in the ecological complexes of which they are part. This includes diversity within species, between species and ecosystem. (Malabo rin yung definition diba?) Main cause of loss of biodiversity Number one, it occurs in the terrestrial area of man but also in the coastal waters, the deforestation problem is connected with the loss of biodiversity. Many of the Philippine species, a lot of which are endemic and depend on the forest, are gradually becoming extinct, the reason for this is that, forest lands, once occupied by these species, are raised and converted into residential or agricultural areas. So the loss or alteration on their habitat gravely affects the resident species, chances for survival, they are not only driven out from their habitat but they are also deprived of their food source. Scarcity of their food supply usually leads to their extinction. However, the loss of their habitat, threatens to destroy the ecological balance of communities and of ecosystems. For example, is the endangered Philippine Eagle. That is the reason, because of the loss of habitat. Another area of supreme concern in the loss of biodiversity is our coastal and marine water as well as inland water resources such as lakes, rivers and reservoirs. The causes for this loss of biodiversity are water pollution, influence from agricultural, industrial and domestic areas, which contribute to the deterioration and pollution of our inland water resources. So as a consequence, water quality in these water resources has deteriorated causing habitat loss also and deprivation. So entourage of fresh water species and species other than fish such as amphibians are also endangered of extinction. Also diversion of rivers for irrigation and dam


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Lectures of Judge Alberto Serrano in Natural Resources and Environmental Law construction have affected the movement of migratory species and drastically changed river habitats. D. Problems in aerial territory. Air Pollution is a serious and pressing problem in the Philippines. The World Health Organization ranked Manila as the fourth largest air polluted capital in the world, next to Mexico, Shanghai, and New Delhi. Reports have shown that every year, 5000 premature deaths which have occurred in the Philippines were caused by respiratory diseases such as severe bronchitis, pneumonia, lung cancer, and cardiovascular disease. As much as 1.5 million Filipinos suffer from respiratory sickness due to indoor pollution in urban areas and one third of the number suffers from various illnesses due to indoor pollution. These deaths and illnesses have caused the country 950 million productive loss and health care expenses. Clearly, air pollution not only affects the human health of the Filipinos, it also has the repercussions on the economy. What are the causes? Rapid urbanization and industrialization Air pollution are caused by 2 types of sources: 1. Outdoor Air Pollution Is large scale pollution outside the people’s zones. Involves external pollutants such as vehicular emissions. 2. Indoor Air Pollution Involves proximity to indoor air pollutants such as cigarette smoking and cooking with solid fuels. E. Problems in the mining sector Mining is a major industry in the Philippines and is believed to play a vital part in determining the success of country's economy. It generates employment, more than 192,000 jobs have been created since 2010. It provides taxes on mining companies, making it one of the major sources of revenue for the local governments in

the area. On the national level, mining activities also contribute to the country’s export earning amounting to 1.4 Billion in 2009 and 391 Million for the first half of 2010. Industry has accounted for almost ¼ of the country’s total export of earnings and contributed significantly to the country’s gross domestic product in the early 1980s. However, the long term effects of mining operations have resulted in significant damage to the environment such as deforestation, loss of wild life habitat, decrease in the quantity and quality of water supply, decrease in agricultural production, erosion and flash floods, water and air pollution, and threat to the marine environment brought by erosion. In fact, the Philippines today is considered one of the worst countries in the world when it comes to dam failures (yung mga latak ng ano, ng minerals naiiwan, by the way). Toxic waste of the mining sites are not properly disposed of which has led to disastrous consequences for the local people and the environment. Mining in the Philippines typically consists of open pit mining (ito yung binubutas yung bundok, hukay lang nang hukay) which involves flattening of mountain taps and creation of huge craters. This form of mining produced huge amount of toxic wastes, large scale gold mining also results in huge amount of toxic wastes such as cyanide, which is used to separate the gold from the ore thereby releasing potential harmful toxic metals. So the negative effects of mining are very apparent in the infamous space or land copper mind disaster of 1996. The mining site consisting of more than 400 million metric tons of waste caused widespread damage to farm lands and property. Mining also results in the reduction of forest covers which is targeted for flood areas. Oftentimes, mining is conducted within the ancestral domains of the indigenous people. Now, under the RA 8371 (IPRA 1997), the mining operators must be able to secure the free, prior and informed consent of the indigenous people on whose territory the mining will be conducted. Unfortunately, despite these requirements, mining operations result in the displacement of the indigenous peoples. Not only


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Lectures of Judge Alberto Serrano in Natural Resources and Environmental Law big-scale but also small-scale mining activities are just as destructive to the environment. Problem is the monitoring of mining activities. According to the government itself, the problem is that monitoring and regulation is not lodged with the DENR but with the provincial mining regulatory board which is led by the Governor (so localized not on the national level). Related of course to problems is pollution.

the

death of persons. Can you imagine that, the population of Japan, this year (ata) 30 to 35% of the total population of Japan, is aged 65 and above (matatanda na ang mga Hapon). In 5 more years, the senior citizens will compose 40% of their population (Kaya punta na lang tayo ng Japan. Nangangailangan sila ng workers. Sobrang dami natin di ba? Maganda kasi ang Japan. Ganun din sa Korea.).

environmental

What is pollution? When something is added to the environment which is harmful, poisonous, or fatal to the people and the animal surrounding it and other living things, it is called pollution. Pollution is also the contamination by chemical or other pollutants that renders part of the environment unfit for the intended or desired use. This is triggered by industrial and commercial waste, agricultural practices, day to day human activities, modes of transportation, as well as other sources. Even chemical substances or energy may cause pollution such as noise, heat or light.

B.

Water pollution

It is due to the introduction of chemical, biological and all sorts of physical matter into large bodies of water that degrade the quality of life that lives in it and consumes it. It has been caused by fertilizers, pesticides, petroleum derivatives. In addition, other contributors to water pollution are waste treatment facilities, mining, pesticides, herbicides, oil spills, refiners, failing septic systems, anti-freeze leaks from cars, animal wastes, soap from washing cars, household chemicals and many more. (Of course have already discussed this in relation with water pollution) it reduces the source of clean water which is important in sustaining life not only of human but also of animals.

Common types of pollution C. Noise pollution A. Air pollution Caused by the accumulation of hazardous substances to the atmosphere that endangers human life and other living matters. The most dominant player of air pollution is automobiles or vehicles. Other causes are combustion of coal, acid rain, manufacturing buildings, tobacco smoke, pain fumes, aerosol sprays, nuclear weapons, wild fires. The effect of air pollution is respiratory diseases (number 1 yan), it causes respiratory diseases. The second one is heart diseases caused by increased level of carbon monoxide in the air. In addition persons cannot avoid the risk of asthma, lung irritation and bronchial disease due to air pollution. In estimate, the air pollution amounts to 80% of premature

It is the excessive noise that may distract the activity of balance human or animals. The main causes of noise pollution are of course machine, transportation systems (bakit ba pinayagan mga motorsiklo, tricycles, ang ingay niyan eh), aircrafts (lalo na yung mga malapit sa mga airports). In addition, it may be due to poor urban planning. Indoor noise may be caused by machines’ building activities, performances (sino ba di maingay kapag di nagpeperform?) and other forms of noise. D. Solid waste pollution This takes a lot of share in total pollution. This type of pollution may be composed of


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Lectures of Judge Alberto Serrano in Natural Resources and Environmental Law municipal solid waste (yung basura), and hazardous waste, plastic waste, and E waste. So the MSW (municipal solid waste) also called trash, garbage is mainly composed of everyday items that are discarded by the public.

should be fully informed of what the relevant environmental laws are so that they may become fully aware of what are allowed and what are prohibited in relations to their actions affecting the environment.

2 Types of MSW

The right to environment is a fundamental right of each person. This need not be written in the Constitution but it has been incorporated in the fundamental law. The right to environment has existed since the inception of human right. This has been highlighted in the Constitution. Related to the right to environment of course is environmental justice. This is an evolving idea since there is no single definition for this simple yet powerful concept.

1. Biodegradable/Recyclable 2. Non-Biodegradable Hazardous categories 1. 2. 3. 4.

waste

are

classified

into

4

Ignitability Activity Proceedity (?) Toxicity

Plastic wastes pose great threat to the environment because its non-biodegrable nature. It is at the top of the chart in pollution (mga basura nasa landfill na natin yan). E wastes which include electrical and electronic equipment. E wastes cover office equipment, television sets, discarded computers, entertainment device electronics and mobile phones. All E waste causes led, cardium(?), delivium(?). One of the biggest sources of E waste is the batteries discharged from electronics such as from computers and mobile phones. Remediation of the environment is a big business in the United States. Big companies specialize on environmental clean ups. Principles on the Right to Environment As the people become aware and vigilant about state of environment and insisted that defenders of the environmental laws be held accountable, the Philippine environmental laws and government regulations should be enforced in order to protect the environment and help people in all walks of life and in pursuit to a balanced and healthful ecology. The environment has become an important issue and it is imperative that people

The basic principles on the right to environment that underlie the rules of procedure for environmental cases include the following: 1. Sovereignty over natural resources and the obligation not to cause harm 2. Principle of Prevention 3. Precautionary Principle 4. Sustainable Development 5. Intergenerational Equity A. Sovereignty over natural resources and the obligation not to cause harm Since the 1970s, State sovereignty over natural resources is always read or taken into account with the obligation not to cause harm. Every state of course is sovereign within its territory. It can do whatever it pleases with the resources within its territory. However, because of environmental concerns, for example, Principle 21 of the Stockholm Declaration which is the cornerstone of the international environmental law reflects the principle of sovereignty over natural resources and the duty not to cause harm. The Stockholm Declaration particularly declares that States have, in accordance with the charter of United Nations and the principles of International Law, sovereign right to exploit their own resources pursuant to their own environmental policies and


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Lectures of Judge Alberto Serrano in Natural Resources and Environmental Law to do the responsibility to ensure that activities within jurisdiction or control do not cause damage to the environment of other states or areas beyond the limits of national jurisdiction. So that is the duty not to cause harm. There should be a balance between the sovereignty to exploit and its duty to ensure that the State do not cause damage to the areas of other states.

better to stop pollution rather than commence efforts to clean the contaminated areas later in the day.

The sovereign right over natural resources includes the right of the States to be free from external interference. The exercise of State sovereignty however has its limits. Principle 21 provides that the state has responsibility not to cause harm beyond the limits of its national jurisdiction. The no harm principle recognizes that states’ activities may be trans-boundary 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 of their territory. (Nuclear testing dapat bina-ban because it affects other territory and the environment. So dapat di na pinapayagan yan.)

Another application of this principle is the conduct of Environmental Impact Assessment (EIA). In the Philippines, the governing law in the conduct of the EIA is PD 1586 (An Act Establishing an Environmental Impact Statement System) including other environmental management related measures.

B. Principle of Prevention The principle of prevention aims to stop the environmental damage even before it occurs or when it is critical or potential damage may be irreversible. The principle of prevention of prevention should be differentiated from the obligation not to cause harm. The obligation not to cause harm deals with the effects of states’ activities outside its own territory without regard to the activities that cause environmental harm within the State while the principle of prevention encompasses only environmental harm within a States’ own territory. So in applying this principle, action should be taken at an early stage, for example to reduce pollution, rather than wait for the irreversible effects to occur. For example, the discharge of toxic substances in amounts which exceed the capacity that the environment can handle must be stopped or halted in order to ensure that no irreversible damage is inflicted. This is done to prevent irreversible harm for it is

A method by which this principle is spread out is through the issuance of permits or authorizations. These permits fix the conditions of administrative controls and criminal penalties.

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. Corollary to this principle (or the expansion of the principle of prevention) is the precautionary principle. C. Precautionary Principle Actually, this has been embodied in Rule 20 of the Rules of Procedure for Environmental Cases. The basis of this environmental principle is Principle 15 of the Rio Declaration (Rio De Janeiro, Brazil) commonly known as the Precautionary Principle. In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. The principle advocates that the potential harm should be addressed even with minimal predictability at hand. The precautionary principle requires a high degree of prudence from the part of the State owners. Decision-makers are not only mandated to account for scientific uncertainty but it can also


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Lectures of Judge Alberto Serrano in Natural Resources and Environmental Law take positive action – it can restrict a product or activity even when there is scientific uncertainty. Example: Food and Drug Administration (FDA) - if a product is to be marketed, it should have the approval of the FDA (or at least some of the products).

Key Concepts:

Under the Rules of Procedure for Environmental Cases, the precautionary principle is adopted as a rule of evidence. The Supreme Court’s adoption affords the plaintiff a better chance of proving their cases where the risks of environmental harm are not easy to prove.

The principle of sustainable development addresses the need to reconcile issues of development and environmental protection. It recognizes that development requires economic exploitation to satisfy the needs of 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 generation. Non-renewable resources must be used as efficiently as possible (example, Malampaya natural gas). According to this principle, there must be optimal management of natural resources. This principle is also embodied in the Philippine agenda which was formulated as a response to the country’s commitments in the 1992 Earth Summit in Rio De Janeiro, Brazil.

Dolphins vs Secretary Reyes, et al. SC-GR No. 180771 (Undecided) • Dolphins etc. in the Tañon Straight • Alleged harmful effect to the dolphins because of oil exploration. • Issue: Require the application of precautionary principles • We are not certain scientifically that it will cause the death of these animals. But it is better to err in favor of protecting the environment than later regret the harm done • Apply precautionary principles as a rule of evidence because under the Rio Declaration (to reiterate) where there are threats of irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing costeffective measures to prevent environmental degradation D. Sustainable Development Development of the country should meet the needs of the present generation yet that development should be sustainable so that the future generations will also benefit from the 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. (Kung mag-aasawa kayo, ano ang ipapamana nyo sa mga anak nyo? Wag kang swapang.)

1. Existence of needs with particular focus to the needs of the poor. 2. Environment has limitation in meeting the needs of present and future generations

E. Intergenerational Equity The concept of intergenerational equity supports the principle of sustainable development. Present generation holds the natural resources in trust for future generations. Intergenerational Equity means each generation’s responsibility to leave an inheritance of wealth no less than what they themselves have inherited. This was actually applied by the Supreme Court in the case of Oposa vs Factoran (Penned by Chief Justice Davide). This is the case where the SC had the occasion to discuss the concept of intergenerational responsibility. The case was instituted by minors along with their parents alleging that the Secretary of Natural Resources acted with grave abuse of discretion in issuing the Timber License Agreements (TLA) to cover more forest areas. The Respondents alleged (1) that


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Lectures of Judge Alberto Serrano in Natural Resources and Environmental Law the minors who invoked the right to a balanced and healthful ecology have no valid cause of action and (2) that they have no standing. The SC said that the minors were entitled to sue on the basis of intergenerational responsibility. They are suing not only in their behalf as persons who already exist and are entitled to a balanced and healthful ecology but also for children yet unborn. The personality of minors to sue in behalf of the succeeding generations can only be based in the concept of intergeneration responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right 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, minerals, land, waters, fisheries and other natural resources to the end that the restoration, development and utilization be equitably accessible to the present as well as the future generations. Rights-based Approach This is a recognition of the right to environment as a fundamental human right. Rights-based Approach is based on the recognition of the right to environment as a fundamental human right which ought to be protected. In environmental justice, the rightsbased approach can be found in various international documents. Examples: Universal Declaration of Human Rights (UDHR), Stockholm Declaration, and Rio Declaration, among others.

Under the UDHR the right to a standard of living adequate for health and well-being is provided there. All of us have a right to a standard of living adequate for health and well-being. Such right carries with it the right to the environment. In the Stockholm Declaration which is a primary document in international environmental law, it was stated in Principle 1 that man has a fundamental right to freedom, equality, and

adequate conditions of life in an environment of quality that permits a life of dignity and well-being. And he bears a solemn responsibility to protect and improve the environment for the present and future generations. In this respect, policies holding and perpetuating after time racial segregation, discrimination, colonial and other forms of oppression and foreign domination stand condemned and must be eliminated. In the Rio Declaration, under its 27 Principles, the goal of ensuring protection of the environment must be recognized. So Principle 1 acknowledges that human beings are the center of concerns for sustainable development. The Rio Declaration also underlines the obligation of States not to cause harm beyond its jurisdiction sovereignty and the obligation not to cause harm. You also consider environmental protection as an integral part of development. The Rio Declaration also mandates that the States cannot (di ko maintindihan sori parang may “poverty”) and give special attention to the least developed and environmentally vulnerable countries, emphasizing that the cooperative process states a common but differentiated responsibilities. In achieving sustainable development, the Rio Declaration also recognizes the importance of enjoining the citizens in addressing environmental issues with particular emphasis in the roles of women, the youth, and the indigenous peoples. So what is it that should be enforced as a cause of action? Well, under the rights based approach, the right of persons to environmental protection has the same level as a basic human right diba. Under the civil code HR violated, you have redress diba. It’s also a basic human right so can you enforce it in a court of law? Yes, of course! But what do you enforce? The adoption of the rights based approach placed a crucial role in litigation because persons can be allowed to litigate on the basis of their right to a healthy


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Lectures of Judge Alberto Serrano in Natural Resources and Environmental Law environment in the same way that they can litigate on the basis of their civil and socio-economic rights. So in line with the rights based approach, there is a growing trend towards achieving environmental justice.

Basically, to consider the right of environment as a fundamental right, it is already part of the Bill of Rights diba. What right should already cover it? Right to life! O what is that? DUE PROCESS LAW!!

Presently, the concept of environmental justice varies among groups. Some define environmental justice as the goal of achieving adequate protection from or against the harmful effects of environmental agents – EVERYONE regardless of age, culture, ethnicity, gender, race, or socio-economic status. And others view environmental justice as equitable distribution of burdens of the environmental harms among various groups.

Classes of laws 1. Terrestrial laws (ex. PD705 – revised forestry code of the Phil.) 2. Marine and aquatic resources laws 3. Aerial 4. Others

One author suggests that there are two fundamental principles of environmental justice – DISTRIBUTIVE and PROCEDURAL justice. In distributive justice, this refers to the equitable distribution of the environmental risks and harms while procedural focuses on the right of the stakeholders to participate on the decision making processes concerning the environment and enabling them to have access to relevant information. 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, to ensure access to justice. There is heavier emphasis on policies, laws, and legal procedures. In the context of judicial system, environmental justice is tested in the light of existence of adequate laws and policies, quality of its enforcement, and existence of available remedies for those affected by violations of environmental laws and regulations. How to attain environmental justice: 1. Environmental laws Including international laws, treaties, protocols, and conventions 2. Quality of enforcement of these laws 3. Existence of available remedies to enforce these laws

Act 3572 an act prohibiting… PD 705 PD 1433 Land Warranty Decree of 1978? RA 3571 an act to prohibit cutting, destroying or injuring of planted or growing trees RA 7076 Peoples Small Scale mining act RA 7586 National Integrated Protected Area System Act of 1992 RA 7611 Environmental Plan for Palawan Act RA 7942 Phil Mining Act of 1995 RA 9072 National Cave and Cave Resource management and Protection Act RA 9147 Wildlife Resources Conservation and Protection Act RA 9175 Chainsaw Act State’s duty Government agency responsible = DENR Purpose or primary task of DENR is to ensure equitable sharing of the benefits derived from the environment for the welfare of the present and future generations. DENR is the lead but not the only agency responsible. 5 pillars of justice system: 1. Community 2. Law enforcement 3. Prosecution 4. Judiciary 5. Penology or the jail department or whatever


management

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Lectures of Judge Alberto Serrano in Natural Resources and Environmental Law Each pillar has its task in enforcement of environmental laws and in the prevention of damage. Judiciary promulgated rules already for violations of laws and designated environmental courts throughout the Philippines (Election court kay judge so hindi designated) April 13, 2010 – Rules on Procedure on Environmental cases with the following objectives: 1. To protect and enhance the constitutional right of the people to a balanced and healthful ecology 2. To provide a simplified, speedy, and inexpensive procedure for the enforcement of the environmental rights and duties under the constitution, existing laws, rules, and international agreements. 3. To introduce and adopt innovations in best practices ensuring effective remedies and redress for violations of environmental laws 4. To enable the courts to monitor and exact compliance with orders and judgments in environmental cases In accordance with the objectives of the rules of procedure, the following strategies were adapted: 1. 2. 3.

4. 5.

Liberalized legal standing and citizen suit like Oposa vs. Factoran Speedy disposition of cases Special remedies in the form of “Writ of Kalikasan” “writ of continuing mandamus” and the environmental protection orders Consent decree Adaption of Strategic Lawsuit Against Public Partici…(SLAP)

Environmental Laws PD 1586 Phil Envi Impact Statement System – mandates that private corporations, firms, or entities, agencies and instrumentalities of the government, prepare an environmental impact

statement (EIS) for every proposed project or undertaking which affects the quality of the environment. The purpose is for the government to study whether or not it will grant the environmental compliance certificate (ECC). The project can only be undertaken once the ECC is issued. RA 8749 Clean Air Act of 1999 – comprehensive air management policy and program which aims to achieve healthy air for all Filipinos. RA 9275 Phil Clean Water Act of 2004 – protects the countries water bodies from land based pollution sources and also provides for comprehensive strategy to minimize pollution in a multi-sectoral and participatory approach including all the stakeholders RA 6969 Phil Toxic Substances and Hazardous and Nuclear Waste Act – legal framework to control and manage the importation, manufacture, processing, distribution, management of toxic substances, hazardous, and nuclear waste. The DENR will issue a Chemical Control Order to prohibit or regulate the manufacture etc. of priority chemicals determined to be regulated or banned because of serious risks they impose on public health and environment. There is a list of 48 toxic chemicals. RA 9003 Philippine Ecological Solid Waste Management Act - provides for a systematic, comprehensive and ecological solid waste management program which shall ensure protection of public health and environment. R.A. 9779 Climate Change Act of 2009 - this law aims to systematically integrate the concept of climate change in the policy formulation and development plans of all government agencies and units to the end that the government will be prepared for the impact of climate change. R.A. 93512 Environmental Awareness Act of 2012 - The law aims to promote environmental


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Lectures of Judge Alberto Serrano in Natural Resources and Environmental Law awareness through environmental education. The month of November, by the way, has been declared as the environmental awareness month. What is Environmental Justice? The phrase eluded scholars, but one definition given by the Environmental Protection Agency of the United States – it is the fair treatment of all people, no matter what their race color national origin or income level in the development implementation and enforcement of environmental laws, regulations and policies; meaning that no group of people including racial or socio economic groups should bear a disproportionate share of the negative environmental consequences resulting from industrial, commercial municipal operations in the execution of programs and policies. The department of Energy of USA – fair treatment and meaningful involvement of all people regardless race, ethnicity income or education level in environmental decision making. J. Corona mentioned environmental justice is actually a combination and integration of environmental law and social justice because every person has a right to a clean, safe and healthy environment. As embodied in the Phil. Const. is right of the people to a balanced and healthful ecology. This right has the correlative duty which is to refrain from impairing the environment. Other countries define environmental justice as the pursuit of equal justice and equal protection under the law for all environmental statutes and regulations w/o discrimination based on race, ethnicity and status. It is also the fair treatment of all people regardless of race, color, national origin and income.

idea that brings together environmental protection and social justice. By analysing environmental issues in terms of social justice, the term, looking at the path of social justice environmental perspective more effective and efficient way of dealing with environmental challenges can be achieved this was done by the SC thru the promulgation of rules of procedure for environmental cases which is to enhance mechanism for accessing justice by the benefits to environmental violations and at the same time upholding the people’s right to a balanced environment and healthful ecology. Beyond the rules of procedures lies the social component of environmental justice in our country, the effects of environmental violations has been mostly felt by those in the marginalized sectors of our society they suffer a dreadful decline in health and in the quality of hearing due to pollution and environmental damage. The adverse effects of environmental violations are silent killers whose victims are those who do not have the means of protecting themselves. The Rules of Procedure provide the victims means to empower themselves thru the availment of remedies accorded to them. This serves as an effective response to the urgent need to address environmental problems in order to prevent the harsh effects of environmental damage most notable in water air deforestation and loss in marine and terrestrial biodiversity. The country has seen the most dangerous of all effects brought about by climate change. Yolanda. Global warming cause countries significantly at risk where about half of the total area of more than 80% of the population are vulnerable to natural disasters. How did this environmental justice evolve? Makinig lang muna kayo anyway hindi naman ito...background lang.

So no matter how the concept is defined what is the core of environmental justice is, is the


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Lectures of Judge Alberto Serrano in Natural Resources and Environmental Law (1:33:32) The concept of environmental justice emerged in 1982 the USA in the case of _______vs. South Western. This case involved a decision of the North Carolina SC. The State of North Carolina choose ______ it predominantly lack unity in county NC as the dumpsite for toxic waste landfill for over 32K cubic yards of polychornicrom cholorinated. a massive protest was lead by a certain reverend _______ coined term environmental ______. This concept was incorporated into the 1991 National People Call on Environment Summit with certain principle of Environmental Justice (EJ) as adopted. Two major studies were undertaken on the distribution of environmental hazards. And the studies show that location of hazardous waste dumping sites in USA were in predominantly African American communities. (1:35:35) Another principal player in the advent of environmental justice is sociologist ______ Bolard? In his book provided an empirical support to his studies mentioned Eirin Bronchovic? (she advocated the rights of people who have damage or affected by the toxic material restored in their area. They were able to secure damages..clients were able to receive environmental justice). Environmental issues had been in the public eyes. In early 1990s the federal government of the US are taking actions from the issue through the environmental protection... The administration issued an environmental work group distributional issue raised by environmental policies and enforcement. In 1992, it also created the office of Environmental justice. In 1994, President Bill Clinton (idol ni sir, classmate ni GMA, Georgetown) EO 12 Titled Federal action to address environmental justice to minority and low income population. It directed government agencies to making Environmental Justice (EJ) vital part of their vision by reviewing their programs polices and activities.

Environmental justice has become a worldwide concern with researcher examining the same issues in other countries as it was spurred by movement that started in the USA. In USA the EJ movement dealt predominantly with race and the equality needs in the environment. (1:39:14) Globally, the concept has evolved and shifted in focused, it is said that _________ suffer the highest burdens of environmental degradation many countries believe that EJ can apply to communities where those receive disadvantage whether due to their race, social status, immigration status, etc. are at a disproportionate risk of being exposed to environmental hazards. The issue of fairness and equitable access to the resource of the earth has been brought to international awareness. Sources of these various Principles International Environmental laws 1. 1992 Rio Declaration 2. 2002 Hansburg principle 3. The rule of law on Development (SD)

of

Sustainable

SD recognized that people most affected by environmental degradation are the poor and therefore there is an urgent need to strengthen the capacity of the poor. There is representative to defend environmental rights to ensure that the little sections of society are not prejudiced by environmental degradation and not able to enjoy their right to live, social and physical environment that respects and promotes their dignity. Environmental right is actually a component of human right. It grew out of human right – this is the result of the genocide committed in the Second World War act, remember the holocaust. The UN General Assembly adopted the Universal Declaration of Human Rights. Article 35 thereof speaks of the right to standard of living adequate for the health and well-being of an individual and his family. This Universal Declaration of Human Rights filtered to the


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Lectures of Judge Alberto Serrano in Natural Resources and Environmental Law constitution of several counties (na sa atin na din yan, matagal na). But particularly, the Phil. Constitution declared not just the part of the Bill of rights but as a state policy under article 2 of the 1987 Constitution, the right to a healthful ecology as iron clad and no less valuable than those enumerated in the Bill of Rights. Although in the Constitution there is no mechanism for its enforcement this void was already filled up by the SC by the promulgation of the Rules of Procedure for environmental cases. It provides avenues of redress for the degradation or protection of the environment it can be sued either administratively or judicially. EJ is not new or foreign to the Phil. Phil is said to have one of the worlds most develop approaches. E protection and preservation is enshrined as a fundamental state policy sec. 16 Art. 2 of the Constitution, the state shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. The Constitution likewise provide that the generally accepted principles of international law as part of the law of the land therefore international environmental laws are deemed incorporated or transposed into our national law. The international environmental law is law adopted by sovereign states to define the standards in the international level. Several sources of international environmental law: 1. Multilateral Environmental Agreements 2. Generally Accepted Principles on

2. The 1985 Vienna Convention on the protection of the ozone layer – this international instrument obliges parties to phase out substances that deplete the ozone layer such as CFCs and HCFCs which are used in the air conditioning systems of older cars, offices and houses. 3. 1989 Basilea Convention on transboundary movement of hazardous wastes and their disposal – this convention declares illegal the transboundary shipment and disposal of hazardous waste such as cell phone batteries and old computer units except for recycling. 4. 1992 Convention on Biological Diversity – framework convention under which parties may enter into agreements and memorandum of understanding for the conservation of certain species like the marine turtles and sharks. 5. 1998 Rotterdam Convention on prior informed consent procedures for certain hazardous chemicals. This convention requires storage for specific harmful chemical such as asbestos to provide ___ insulation for the protection of health_____affecting such chemicals. 6. 2001 Stockholm convention on persistent organic pollutants. This convention defines parties to immediately bans production and use of certain pesticides. Phase out such pesticides, this adversely affect human health around the world.

Environmental protection What are the Multilateral Environmental Agreements and their protocols that we adopted? 1. United Nations Convention on the Law of the Seas (UNCLOS) – certified by the Phil. on May 8, 1984. This convention or treaty obliges parties to take measures to prevent pollution on the marine environment from any source including land based sources

EJ goes beyond traditional environmental protection objectives, consider the equitable distribution of pollution and more broadly often disproportionate burden born and carried by poor and minority groups with respect to environmental mog (?). This convention also provided principles that are relevant to environmental cases like the ones we already discussed, the precautionary principle, the polluter based principle, principle of intergeneration equity and environmental justice.


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Lectures of Judge Alberto Serrano in Natural Resources and Environmental Law this seek ensure that authorities fairly allocate and regulate scarce resources to insure benefits of environmental resource, the costs associated with protecting from any degradation are equitably shared by all members of society.

2. Can they be applied by the Philippine Courts?

Precautionary principle as we discussed earlier scientific uncertainty should not be used as a reason not to take action with respect to a particular environmental concern. Those engaged in potentially damaging activity have the burden of establishing the absence of environmental harm.

All these questions have been answered in the affirmative.

The Pollutant Based Principle states that national public authority should refrain from subsidizing the political control costs of private enterprises. Instead, these private enterprises should bear the cost of controlling the pollution that they caused. If your company is producing products that pollute the environment then the cost of clean-up, remediation or even the prevention of pollution should be carried by you which should not passed on to the government or the State. This principle has been applied by US, Japan and India. Required in cases requiring toxic clean-up. In the Erin Brockovich case, the chemicals binaon sa lupa, humalo sa ground water, humalo sa tubig, affected the residents of the nearby community. The consequence of that is cancer. Maraming namatay sa area. That is why they filed a case. The company becomes responsible in dumping the toxic waste in that area that contaminated the ground water. Bear in mind the representatives of multilateral environmental agreements and the three general principles of environmental protection. The questions that may be asked are the following: 1. What is the status of Philippine jurisdiction with respect to cases that may require the aggravation of international agreements on environment?

3. Can non state litigants provisions before Philippine courts?

invoke

the

What are the reasons why they can be applied in environmental protection in the Philippines: 1. Rules of Procedure on environmental cases in Philippine courts and jurisdiction over the cases involving enforcement or violation of the international environmental laws committed within the territorial boundaries of the state. The courts can interpret and apply the provisions of such laws. Rule 1 itself states that the enumeration of environmental laws in section 2 is not exclusive. Philippine courts can extrapolate from the list considered other sources of environmental law. 2. International agreements become part of the law of the land through adjudication, local legislation or constitutional fiat with the national environmental agreements and other international environmental agreements become part of our national law. And thus they have the force and effect of laws in the Philippines. Not only have the ultra multilateral environmental agreements be clarified in the Philippines but may also be transformed into local legislation by RA6969 (Toxic Substances and Hazardous Nuclear Waste Control Act of 1990), RA 9147 (Wildlife Resources Conservation and Protection Act), RA8749 (Philippine Clean Air Act of 1999). So Philippine courts can interpret and apply international environmental law in environmental cases. They may even refer to the provisions of international environmental law to shed life on or supply gaps if any on the provisions of national environmental laws.


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Lectures of Judge Alberto Serrano in Natural Resources and Environmental Law Potential Bar questions: 1. Can International Agreements be enforced by the Philippine Courts with respect to environmental cases? 2. In case of conflict between our laws and international environmental laws, which shall prevail? The answer is provided in the case of Pharmaceutical and Health Association of the Philippines vs Health Secretary (GR No. 173034, October 9, 2007). This is based on international law principle of pacta sunt servanda - the party to a treaty or convention must perform its obligations in good faith. Thus it may not invoke the provisions of its internal law as justification for its failure to perform a duty. So the duty of the Philippine Courts is to give force and effect to the prohibitions, regulations and obligations found in multilateral environmental agreements whether or not they have been transposed into local laws. The Supreme Court has also adopted and applied the precautionary principle, inter-generational and intra-generational equity principle. On the other hand, Congress has also adopted the pollutant based principle RA9275 (Philippine Clean Water Act of 2004) prohibits certain acts such as discharging, depositing or causing to be deposited material of any kind directly or indirectly into the water bodies or along the margins of any surface water, where, the same shall be liable to be washed into such surface water, either by tide action or by storm, floods or otherwise, which could cause water pollution or impede natural flow in the water body. At the same time the violators are penalized if they may fail to undertake clean-up operations willfully or through gross negligence they shall be punished by imprisonment and a fine of 50,000500,000 per day in violation. Metropolitan Manila Development Authority et al. vs Concerned Residence of Manila

Bay. In this case, certain government agencies primarily responsible for the clean-up of the Manila Bay. No private enterprise was impleaded as a polluter. None was charged for the cost of the clean-up. However, it must be borne in mind that the court held the government agencies liable under a continuing mandamus (Mandamus- command by the court for a certain government agency or person to perform an act [clean-up]; Continuing – the writ of mandamus no duration) to undertake clean-up activities to implement the decision. Resident Marine Mammals of Tañon Strait Protected Seascape vs Reyes. The question here is: “May environmental law be invoked by a non-state party such as ordinary man of the street or even by public interest group on behalf of whale, or a dolphin in Tañon Strait? May a non-state party may sue to enforce provisions of local legislations incorporating the provisions of multilateral environmental agreements. However, may the same party directly invoke the provisions of multilateral environmental agreements which have not been transposed to local legislation?” Some significant decisions in environmental law where environmental justice is somehow attained. Supreme Court decided landmark cases involving the environment. These cases put the country on the world map with respect to innovative judicial thinking on environmental protection. They also demonstrate that Philippine Courts are more often than not is forced to rule in favor to protect the environment. 1. Oposa vs FactoraResponsibility or Equity

Intergenerational

2. MMDA vs Concerned Citizens of Manila Bay- clean-up of Manila Bay. The first ever order of continuing mandamus in the country. Agencies to perform respective tasks or clean-up and it continues indefinitely. Require a formation of an


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Lectures of Judge Alberto Serrano in Natural Resources and Environmental Law advisory committee to ensure compliance with the order. These highlights the interest safeguarding the environment. 3. Resident Marine Mammals of Tañon Strait (GR No.180771) – The petitioners claim that the marine mammals possess legal standing to sue. They have sustained direct injuries by reason of ____ exploration and resulting pollution of their habitat. They claim that the effect of the underwater noise to the marine mammals is fatal. They also maintain that the service contract violates the Constitution. On the other hand, the respondents claim that marine mammals are neither natural nor juridical persons cannot be parties to a civil action. Contrary to the petitioner’s allegations that service contract is allowed under the Constitution.

On the other hand, respondents argue that a. the Ordinance constitutes an unreasonable exercise of Police Power b. The ordinance imposes a ban instead of merely regulation of aerial spray c. There is no scientific basis for the ban of the aerial spray that produces adverse effect on the people and the environment. Supposing there is no scientific basis that the aerial spray would affect the environment, will you sustain the validity of the ordinance? Yes. Apply the precautionary principle.

4. Mosketo vs Pilipino Banana Growers and Exporters Association (GR No. 189185) - the aerial spray of pesticides on the banana plantations in Davao City. An ordinance was passed by the City of Davao banning aerial spraying as an agricultural practice in the City. This prompted the respondents to file a petition assailing the Constitutionality of the Ordinance. The right to a healthful and balance ecology. RTC- Constitutional, CA- Unconstitutional, SCpending. Arguments: a. Ordinance is a valid exercise of Police Power b. There is proof that the people are adversely affected by the substances sprayed aerially c. The banana growers’ interest are protected because there are other means of spraying d. There is no violation of the Equal Protection Clause because there is a rational basis for classification e. The property rights of the Banana Growers should not be placed above the rights of persons’ life, balance and healthful ecology.


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Natural Resources and Environmental Law Lecture (2014)

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