environmental law and procedural rules

7/21/2019 Environmental Law and Procedural Rules

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ENVIRONMENTAL LAW AND PROCEDURAL RULES

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ENVIRONMENTAL LAW AND PROCEDURAL RULESAntonio G.M. La Via and Josef Leroi L. Garcia

A. Definit ion

Environmental law covers all laws that relate to the preservation, protection,conservation, exploitation, utilization, development, and management of theenvironment and its natural resources. Major Philippine environmental laws canbe divided into three categories, viz: Those that primarily deal with:

1) the regulation of exploitation, utilization and development of naturalresources;

2) the preservation, protection, and conservation of flora and fauna; and3) pollution and environmental management.

Those that belong to the first categoryinclude the following:

1) Presidential Decree No. 705, Revised Forestry Code, as amended byPres. Decree No. 1559, Executive Order No. 277, and Republic ActNo. 7161;

2) Rep. Act No. 8550, Philippine Fisheries Code;3) Rep. Act No. 7076, Peoples Small-Scale Mining Act; and4) Rep. Act. No. 7942, Philippine Mining Act.

Those that belong to the second categoryinclude the following:

1) Rep. Act No. 7586, National Integrated Protected Areas System Act;2) Rep. Act No. 9147, Wildlife Conservation and Protection Act; and3) Rep. Act No. 9072, National Caves and Cave Resources

Management Act.

Those that belong to the third categoryinclude the following:

1) Pres. Decree No. 979, Marine Pollution Decree;2) Pres. Decree No. 1586, Establishing an Environmental Impact

Statement System;3) Rep. Act No. 8749, Clean Air Act;

4) Rep. Act No. 9275, Clean Water Act;5) Rep. Act No. 9003, Ecological Solid Waste Management Act; and6) Rep. Act No. 6969, Toxic Substances and Hazardous Waste Act.


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B. Rules of Procedure for Environmental Cases

Supreme Court Administrative Matter No. 09-6-8-SC dated April 13, 2010 laysdown theRules of Procedure for Environmental Cases1.

These Rules govern the procedure in civil, criminal, and special civil actionsbefore the Regional Trial Courts (RTC), Metropolitan Trial Courts (MTC),Municipal Trial Courts in Cities (MTCC), Municipal Trial Courts (MTC), andMunicipal Circuit Trial Courts (MCTC) involving enforcement or violations ofenvironmental and other related laws, rules, and regulations.2

C. Environmental Laws Covered by the Rules

It is important to note that Section 2 on the Scope thereof gives anenumeration of said laws and rules that the case be involved in but inferentially

states that the listing is not exhaustive by using the phrase such as but notlimited to the following:

1) Act No. 3572, Prohibition Against Cutting of Tindalo, Akli, and MolaveTrees;

2) Pres. Decree No. 705, Revised Forestry Code;3) Pres. Decree No. 856, Sanitation Code;4) Pres. Decree No. 979, Marine Pollution Decree;5) Pres. Decree No. 1067, Water Code;6) Pres. Decree No. 1151, Philippine Environmental Policy of 1977;7) Pres. Decree No. 1433, Plant Quarantine Law of 1978;8) Pres. Decree No. 1586, Establishing an Environmental Impact

Statement System Including Other Environmental ManagementRelated Measures and for Other Purposes;

9) Rep. Act No. 3571, Prohibition Against the Cutting, Destroying orInjuring of Planted or Growing Trees, Flowering Plants and Shrubs orPlants of Scenic Value along Public Roads, in Plazas, Parks, SchoolPremises or in any Other Public Ground;

10) Rep. Act No. 4850, Laguna Lake Development Authority Act;11) Rep. Act No. 6969, Toxic Substances and Hazardous Waste Act;12) Rep. Act No. 7076, Peoples Small-Scale Mining Act;13) Rep. Act No. 7586, National Integrated Protected Areas System Act

including all laws, decrees, orders, proclamations and issuancesestablishing protected areas;

14) Rep. Act No. 7611, Strategic Environmental Plan for Palawan Act;15) Rep. Act No. 7942, Philippine Mining Act;16) Rep. Act No. 8371, Indigenous Peoples Rights Act;17) Rep. Act No. 8550, Philippine Fisheries Code;

1AM. No. 09-6-8-SC, Effective April 29, 2010.

2RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, Rule 1, Sec. 2.


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18) Rep. Act No. 8749, Clean Air Act;19) Rep. Act No. 9003, Ecological Solid Waste Management Act;20) Rep. Act No. 9072, National Caves and Cave Resource Management

Act;21) Rep. Act No. 9147, Wildlife Conservation and Protection Act;

22) Rep. Act No. 9175, Chainsaw Act;23) Rep. Act No. 9275, Clean Water Act;24) Rep. Act No. 9483, Oil Spill Compensation Act of 2007; and25) Provisions in Commonwealth Act No. 141, The Public Land Act; Rep.

Act No. 6657, Comprehensive Agrarian Reform Law of 1988; Rep. ActNo. 7160, Local Government Code of 1991; Rep. Act No. 7161, TaxLaws Incorporated in the Revised Forestry Code and OtherEnvironmental Laws (Amending the NIRC); Rep. Act No. 7308, SeedIndustry Development Act of 1992; Rep. Act No. 7900, High-ValueCrops Development Act; Rep. Act No. 8048, Coconut Preservation Act;Rep. Act No. 8435, Agriculture and Fisheries Modernization Act of

1997; Rep. Act No. 9522, The Philippine Archipelagic Baselines Law;Rep. Act No. 9593, Renewable Energy Act of 2008; Rep. Act No.9637, Philippine Biofuels Act; and other existing laws that relate to theconservation, development, preservation, protection, and utilization ofthe environment and natural resources.

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D. Precautionary Principle

This is one of the distinctive features of this Rule.

1. Definition

When human activities have an environmental effect that may lead to (1)threats to human life or health; (2) inequity to present or future generations; or(3) prejudice to the environment without legal consideration of theenvironmental rights of those affected, although there is a lack of full scientificcertainty in establishing a causal link thereto, the court shall apply theprecautionary principle in resolving the action to avoid or diminish that threat,inequity or prejudice. The benefit of any doubt shall be given to theconstitutional right of the people to a balanced and healthful ecology.

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3Id.

4Id, Rule 20, Secs. 1 and 2.


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2. Application as a Rule of Evidence

Under the Rules of Procedure for Environmental Cases, the courts in civil,criminal, and special civil actions shall apply the precautionary principle as arule of evidence.

3. Standards for App lication

In applying the precautionary principle, the following factors, amongothers, may be considered:

1) threats to human life or health;2) inequity to present or future generations; or3) prejudice to the environment without legal consideration of the

environmental rights of those affected.5

5Id., Sec. 2.


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I. CRIMINAL CASES

A. Original and Exclusive Jurisdict ion of First Level Courts

1. Violation of Forestry Laws

1.1. All the criminal offenses punished under Pres. Decree No. 705 orthe Revised Forestry Code, as follows:

1) Cutting, gathering, collecting, possessing timber or other forestproducts without license or permit (Sec. 77);

2) Unlawful occupation or destruction of forest and grazing lands andkaingin (Sec. 78);

3) Pasturing livestock in public lands without authority (Sec. 79);4) Illegal occupation of national parks and vandalism (Sec. 80);

5) Destruction of wildlife resources (Sec. 81);6) Survey by unauthorized persons (Sec. 82);7) Misclassification and survey of forest land as alienable and disposable

land by public official or employee (Sec. 83);8) Issuance of tax declaration without DENR certification (Sec. 84);9) Coercion and influence of public official (Sec. 85);10) Unlawful possession of implements and devices used by forest

officers (Sec. 86);11) Failure to pay, collect, or remit forest charges (Sec. 87); and12) Sale of wood products without complying with grading rules (Sec. 88).

1.2 Criminal offenses under the Chain Saw Act (Rep. Act No. 9175):

1) Selling, purchasing, re-selling, transferring, distributing or possessing achainsaw without permit;

2) Unlawful importation or manufacture of chainsaw; and3) Tampering of engine serial number.

2. Violation of Fishery Laws

Offenses punished under the Philippine Fisheries Code (Rep. Act No.8550):

1) Unauthorized fishing (Sec. 86);2) Poaching (Sec. 87);3) Possession of explosives, noxious or poisonous substance, or electro-

fishing devices (Sec. 88);4) Dealing in, selling, disposing of, for profit, illegally caught fish (Sec.

88);5) Use of fine mesh net (Sec. 89);


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6) Use of active gear in municipal waters and bays (Sec. 90);7) Coral exploitation and exportation (Sec. 91);8) Illegal use of superlights (Sec. 93);9) Fishing in overfished and closed season areas (Sec. 95);10) Fishing in fishery reserves, refuge and sanctuaries (Sec. 96);

11) Violation of catch ceilings (Sec. 101);12) Illegal gathering and marketing of shell fishes (Sec. 103 [c]);13) Obstruction to navigation or flow and ebb of tide (Sec. 103 [d]);14) Illegal construction and operation of fish traps, fish pens and fish

cages (Sec. 103 [e]); and15) Obstruction of fishery law enforcer (Sec. 106).

3. Violation of Mining Laws

3.1.Criminal offenses punished under the Philippine Mining Act (Rep.Act No. 7942):

1) Illegal exploration (Sec. 102);2) Theft of minerals (Sec. 103);3) Destruction of mining structures (Sec. 104);4) Willful damage to mine (Sec. 106);5) Obstruction of permittees or contractors (Sec. 107);6) Violation of terms of Environmental Compliance Certificate (ECC)

(Sec. 108); and7) Obstruction of government officials (Sec. 109);

3.2 All Violations of the Small-Scale Mining Act (Rep. Act No. 7076).

4. Violation of NIPAS Law

All criminal offenses punished under Sec. 20 of the National IntegratedProtected Areas Law (Rep. Act No. 7586), as follows:

1) Hunting, destroying, disturbing, or mere possession of any plant oranimal or product derived therefrom without a permit from theManagement Board;

2) Dumping of any waste product detrimental to the protected area, or tothe plants and animals or inhabitants therein;

3) Use of any motorized equipment without a permit from theManagement Board;

4) Mutilating, defacing or destroying objects of natural beauty or objectsof interest to cultural communities;

5) Damaging and leaving roads and trails in a damaged condition;6) Squatting, mineral locating, or otherwise occupying any land;7) Constructing or maintaining any kind of structure, fences or

enclosures, conducting any business enterprise without a permit;


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8) Leaving in exposed or unsanitary conditions refuse or debris, ordepositing in ground or in bodies of water; and

9) Altering, removing, destroying or defacing boundary marks or signs.

5. Violation of Wildlife Law

Criminal offenses punished under Sec. 27 of the Wildlife Conservationand Protection Act (Rep. Act No. 9147):

1) Killing and destroying wildlife species, except in the following instances;a) when it is done as part of the religious rituals of established tribal

groups or indigenous cultural communities;b) when the wildlife is afflicted with an incurable communicable

disease;c) when it is deemed necessary to put an end to the misery

suffered by the wildlife;

d) when it is done to prevent an imminent danger to the life or limbof a human being; ande) when the wildlife is killed or destroyed after it has been used in

authorized research or experiments.2) Inflicting injury which cripples and/or impairs the reproductive system of

wildlife species;3) Trading of wildlife;4) Collecting, hunting or possessing wildlife, their by-products and

derivatives;5) Gathering or destroying of active nests, nest trees, host plants and the

like;6) Maltreating and/or inflicting other injuries not covered by the preceding

paragraph; and8) Transporting of wildlife.

6. Violation of Cave Laws

Criminal offenses punished under Secs. 7 and 8 of the National Cavesand Cave Resources Management Act (Rep. Act No. 9072):

1) Knowingly destroying, disturbing, defacing, marring, altering, removing,or harming the speleogem or speleothem of any cave or altering thefree movement of any animal or plant life into or out of any cave;

2) Gathering, collecting, possessing, consuming, selling, bartering orexchanging or offering for sale without authority any cave resource;and

3) Counseling, procuring, soliciting or employing any other person tocommit any of the above acts.


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7. Violation of Pollution Laws

7.1 Criminal offenses punished under Sec. 4 of the Marine PollutionDecree (Pres. Decree No. 979):

1) Discharge or dumping of oil, noxious gaseous and liquidsubstances and other harmful substances from or out of any ship,vessel, barge, or any other floating craft, or other man-madestructures at sea;

2) Discharge or dumping of any refuse matter other than that flowingfrom streets and sewers out of any ship, barge, or other floatingcraft of vessel, or from the shore, wharf, manufacturingestablishment, or mill into tributary of any navigable water; and

3) Depositing of material of any kind on the bank of a navigable wateror its tributary.

7.2 Criminal offense of failure to undertake clean-up operations

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,willfully or through gross negligence, as punished under Sec. 28 of theClean Water Act (Rep. Act No. 9275).

7.3 All criminal offenses of violations of provisions of the Clean Air Act(Rep. Act No. 8749) other than those administratively penalized underSecs. 45 and 46 and those considered as gross violations under Sec. 48thereof.

7.4 Criminal offenses punished under Secs. 48 and 49 of theEcological Solid Waste Management Act (Rep. Act No. 9003):

1) Littering, throwing, dumping of waste matters in public places;2) Operating, collecting or transporting equipment in violation of

sanitation requirements or permits;3) Open burning of solid waste;4) Causing or permitting the collection of non-segregated or unsorted

wastes;5) Squatting in open dumps and landfills;6) Open dumping, burying of biodegradable or non-biodegradable

materials in flood prone areas;7) Unauthorized removal of recyclable material intended for collection

by authorized persons;

6Republic Act No. 9275 [2004], Sec. 4 (g): Clean-up operations means activities involving the

removal of pollutants discharged or spilled into a water body and its surrounding areas, and therestoration of the affected areas to their former physical, chemical and biological state orconditions.


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8) Mixing of source-separated recyclable material with other solidwaste in any vehicle, box, container or receptacle used in solidwaste collection or disposal;

9) Establishment or operation of open dumps as enjoined in this Act,or closure of said dumps in violation of Sec. 37;

10) Manufacture, distribution or use of non-environmentally acceptablepackaging materials;11) Importation of consumer products packaged in non-

environmentally acceptable materials;12) Importation of toxic wastes misrepresented as "recyclable" or "with

recyclable content";13) Transport and dumping in bulk of collected domestic, industrial,

commercial, and institutional wastes in areas other than prescribedcenters or facilities;

14) Site preparation, construction, expansion or operation of wastemanagement facilities without an Environmental Compliance

Certificate and conforming with the land use plan of the LGU;15) Construction of any establishment within two hundred (200) metersfrom open dumps or controlled dumps, or sanitary landfill; and

16) Construction or operation of landfills or any waste disposal facilityon any aquifer, groundwater reservoir, or watershed area and orany portions thereof.

7.5 Criminal offenses punished under Sec. 13 of the Toxic Substancesand Hazardous Waste Act (Rep. Act No. 6969):

1) Use of chemical substance or mixture which is imported,manufactured, processed or distributed in violation of the Act or itsimplementing rules and regulations or orders;

2) Failure or refusal to submit reports, notices or other information,access to records, as required by the Act, or to permit inspection ofestablishment where chemicals are manufactured, processed,stored or otherwise held; and

3) Failure or refusal to comply with pre-manufacture and pre-importation requirements.

B. Original and Exclusive Jurisd iction of Second Level Courts

1. Violation of Forestry Laws

Crime of actual unlawful use of chain saws under Sec. 7 (4) of theChain Saw Act (Rep. Act No. 9175).


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2. Violation of Fishery Laws

Criminal offenses punished under the Philippine Fisheries Code (Rep.Act No. 8550):

1) Actual use of explosives, noxious or poisonous substance, orelectro-fishing devices (Sec. 88 [3]);2) Muro-ami (Sec. 92);3) Conversion of mangroves (Sec. 94);4) Fishing or taking rare, threatened or endangered species

(Sec. 97);5) Capture of sabalo or other breeders/spawners (Sec. 98);6) Importation or exportation of fish or fishery species (Sec. 100);7) Aquatic pollution (Sec. 102); and8) Obstruction of defined migration paths (Sec. 105).

3. Violation of Mining Laws

Criminal offense of mines arson punished under Sec. 105 of thePhilippine Mining Act (Rep. Act No. 7942).

4. Violation of Wildlife Laws

Criminal offenses punished under the Wildlife Conservation and ProtectionAct (Rep. Act No. 9147):

1) Effecting any of the following acts in critical habitats:a) Dumping of waste products detrimental to wildlife;b) Squatting or otherwise occupying any portion of the

critical habitat;c) Mineral exploration and/or extraction;d) Burning;e) Logging; andf) Quarrying.

2) Introduction, reintroduction or restocking of wildlife resources.

5. Violation of Cave Laws

Criminal offenses when committed by persons furnishing the capital toaccomplish the same, as penalized under Secs. 7 and 8 of the NationalCaves and Cave Resources Management Act (Rep. Act No. 9072):

1) Knowingly destroying, disturbing, defacing, marring, altering,removing, or harming the speleogem or speleothem of any cave oraltering the free movement of any animal or plant life into or out ofany cave;


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2) Gathering, collecting, possessing, consuming, selling, bartering orexchanging or offering for sale without authority any cave resource;and

3) Counseling, procuring, soliciting or employing any other person tocommit any of the above acts.

6. Violation of Pollution Laws

6.1 Criminal offenses punished under Sec. 28 of the Clean Water Act(Rep. Act No. 9275):

1) Failure or refusal to undertake clean-up operations, willfully, orthrough gross negligence resulting in serious injury or loss of lifeand/or irreversible contamination of surface, ground, coastal andmarine water;

2) Deliberate discharge of toxic pollutants identified pursuant to Rep.

Act No. 6969 in toxic amounts;3) Five (5) or more violations of the Clean Water Act within a period oftwo (2) years; and

4) Blatant disregard of the orders of the Pollution Adjudication Board(PAB), such as the non-payment of fines, breaking of seals, oroperating despite the existence of an order for closure,discontinuance or cessation of operation.

6.2 All criminal offenses considered as gross violations of the CleanAir Act (Rep. Act No. 8749), as enumerated under Sec. 48 thereof:

1) Three (3) or more specific offenses within a period of one (1) year;2) Three (3) or more specific offenses with three (3) consecutive

years;3) Blatant disregard of the orders of the PAB, such as, but not limited

to the breaking of seal, padlocks and other similar devices, oroperation despite the existence of an order for closure,discontinuance or cessation of operation; and

4) Irreparable or grave damage to the environment as a consequenceof any violation of the provisions of the Clean Air Act.

6.3 Criminal offense of causing, aiding or facilitating, directly orindirectly, in the storage, importation, or bringing into Philippine territory,including its maritime economic zones, even in transit, either by means ofland, air or sea transportation, or otherwise keeping in storage any amountof hazardous and nuclear wastes in any part of the Philippines, aspunished under Sec. 13 of the Toxic Substances and Hazardous Waste

Act (Rep. Act No. 6969).


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C. Arrest

1. Warrantless Arrest

A peace officer or an individual deputized by the proper government

agency may, without a warrant, arrest a person:

1) When, in his presence, the person to be arrested has committed, isactually committing or is attempting to commit an offense; or

2) When an offense has just been committed, and he has probablecause to believe, based on personal knowledge of facts orcircumstances that the person to be arrested has committed it.

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2. Application of Presumption of Regularity to Deputized Individuals

A peace officer or an individual deputized by the proper government

agency may effect a warrantless arrest. Individuals deputized by theproper government agency who are enforcing environmental laws shallenjoy the presumption of regularity, under Sec. 3(m), Rule 131 of theRules of Court, when effecting arrests for violations of environmentallaws.

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3. Arrest Warrant

All warrants of arrest issued by the court shall be accompanied by acertified true copy of the information filed with the issuing court.

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D. Custody and Disposi tion of Seized Items

1. Applicability o f Rules of Government Agency

The custody and disposition of seized items shall be in accordancewith the applicable laws or rules promulgated by the concernedgovernment agency.

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7RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, Rule 11, Sec. 1; See section on FORESTRY:

Authority to Deputize Environment and Natural Resources Officers and FISHERIES: Authorityover Municipal Watersand Jurisdiction of the DA-BFAR, subsections on Law Enforcement.8Id., Rule 11, Sec. 1(b).

9Id., Sec. 2.

10Id., Rule 12, Sec. 1; See Appendices for DENR and DA-BFAR rules on seizure and custody of

forest products, fish catch, vehicles, boats, and logging and fishing paraphernalia.


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2. Applicability of Rules of Procedure for Environmental Cases

In the absence of applicable laws or rules promulgated by theconcerned government agency, Rule 12, Sec. 2 of the Rules of Procedurefor Environmental Cases shall apply.

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3. Documentation of Seized Items

The apprehending officer having initial custody and control of theseized items, equipment, paraphernalia, conveyances and instrumentsshall physically inventory and, whenever practicable, photograph the samein the presence of the person from whom such items were seized.

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4. Return of Search Warrant or Submission of Report

The apprehending officer shall submit to the issuing court the return of

the search warrant within five (5) days from date of seizure or, in case ofwarrantless arrest, submit within five (5) days from date of seizure theinventory report, compliance report, photographs, representative samplesand other pertinent documents to the public prosecutor for appropriateaction.

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5. Auction of Seized Items

Upon motion by any interested party, the court may direct the auctionsale of seized items, equipment, paraphernalia, tools or instruments of thecrime. The court shall, after hearing, fix the minimum bid price based onthe recommendation of the concerned government agency. The sheriffshall conduct the auction.14

The auction sale shall be with notice to the accused, the person fromwhom the items were seized, or the owner thereof and the concernedgovernment agency. The notice of auction shall be posted in threeconspicuous places in the city or municipality where the items, equipment,paraphernalia, tools or instruments of the crime were seized. Theproceeds shall be held in trust and deposited with the governmentdepository bank for disposition according to the judgment.

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11Id., Rule 12, Sec. 2.

12Id.,Sec.2 (a).

13Id., Sec.2 (b).

14Id., Rule 12,Sec.2(c).

15Id., Sec.2 (d,e, and f).


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E. Complaint and Information

1. Who May Init iate

Any offended party, peace officer or any public officer charged with

the enforcement of an environmental law may file a complaint before theproper officer in accordance with the Rules of Court.16

2. Filing of Information

The information charging a person with a violation of anenvironmental law and subscribed by the prosecutor shall be filed with thecourt.17

3. Special Prosecutor

Where there is no private offended party, a counsel whose servicesare offered by any person or organization may be allowed by the court asspecial prosecutor, with the consent of and subject to the control andsupervision of the public prosecutor.18

F. Bail

1. Where Filed; Hold Departure Order

Bail in the amount fixed may be filed with the court where the case ispending, or in the absence or unavailability of the judge thereof, with anyregional trial judge, metropolitan trial judge, municipal trial judge ormunicipal circuit trial judge in the province, city or municipality. If theaccused is arrested in a province, city or municipality other than where thecase is pending, bail may also be filed with any Regional Trial Court ofsaid place, or if no judge thereof is available, with any metropolitan trial

judge, municipal trial judge or municipal circuit trial judge therein. If thecourt grants bail, the court may issue a hold-departure order in appropriatecases.

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16Id., Rule 9, Sec. 1.

17Id., Sec. 2.

18Id., Sec. 3.

19Id., Rule 14, Sec. 1.


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2. Conditions for Grant of Bail

Before granting the application for bail, the judge must read theinformation in a language known to and understood by the accused andrequire the accused to sign a written undertaking, as follows:

1) To appear before the court that issued the warrant of arrest forarraignment purposes on the date scheduled, and if the accused failsto appear without justification on the date of arraignment, accusedwaives the reading of the information and authorizes the court to entera plea of not guilty on behalf of the accused and to set the case fortrial;

2) To appear whenever required by the court where the case is pending;and

3) To waive the right of the accused to be present at the trial, and uponfailure of the accused to appear without justification and despite due

notice, the trial may proceed in absentia.

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G. Arraignment and Plea-Bargaining

1. Setting of Arraignment; Notices

The court shall set the arraignment of the accused within fifteen (15)days from the time it acquires jurisdiction over the accused, with notice tothe public prosecutor and offended party or concerned governmentagency that it will entertain plea-bargaining on the date of thearraignment.

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2. Procedure in Plea-Bargaining

On the scheduled date of arraignment, the court shall consider plea-bargaining arrangements. Where the prosecution and offended party orconcerned government agency agree to the plea offered by the accused,the court shall:

1) Issue an order which contains the plea-bargaining arrived at;2) Proceed to receive evidence on the civil aspect of the case, if any;

and3) Render and promulgate judgment of conviction, including the civil

liability for damages.22

20Id., Sec. 2.

21Id., Rule 15, Sec. 1.

22Id., Sec. 2.


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H. Pre-Trial

1. Preliminary Conference; Purpose

After the arraignment, the court shall set the pre-trial conference within

thirty (30) days. It may refer the case to the branch clerk of court, ifwarranted, for a preliminary conference to be set at least three (3) daysprior to the pre-trial.

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The preliminary conference shall be for the following purposes:

1) To assist the parties in reaching a settlement of the civil aspect ofthe case;

2) To mark the documents to be presented as exhibits;3) To attach copies of the documents to the records after comparison

with the originals;

4) To ascertain from the parties the undisputed facts and admissionson the genuineness and due execution of documents marked asexhibits;

5) To consider such other matters as may aid in the promptdisposition of the case;

6) To record the proceedings during the preliminary conference in theMinutes of Preliminary Conference to be signed by the parties andcounsel;

7) To mark the affidavits of witnesses which shall be in question andanswer form and shall constitute the direct examination of thewitnesses; and

8) To attach the Minutes and marked exhibits to the case recordbefore the pre-trial proper.24

The parties or their counsel must submit to the branch clerk of courtthe names, addresses and contact numbers of the affiants.

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2. How Conducted by the Court

During the pre-trial, the court shall:

1) Place the parties and their counsels under oath;2) Adopt the minutes of the preliminary conference as part of the pre-

trial proceedings, confirm markings of exhibits or substitutedphotocopies and admissions on the genuineness and dueexecution of documents, and list object and testimonial evidence;

3) Scrutinize the information and the statements in the affidavits andother documents which form part of the record of the preliminary

23Id., Rule 16, Sec. 1.

24Id.

25Id.


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investigation, together with other documents identified and markedas exhibits, to determine further admissions of facts as to:

a) The courts territorial jurisdiction relative to the offense(s)charged;

b) Qualification of expert witnesses; and

c) Amount of damages;4) Define factual and legal issues;5) Ask parties to agree on the specific trial dates and adhere to the

flow chart determined by the court, which shall contain the timeframes for the different stages of the proceeding up to promulgationof decision;

6) Require the parties to submit to the branch clerk of court thenames, addresses and contact numbers of witnesses that need tobe summoned by subpoena; and

7) Consider modification of order of trial if the accused admits thecharge but interposes a lawful defense.

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3. Manner of Directing Questions, Admissions and Agreements, andDocumentation

All questions or statements must be directed to the court.27

Allagreements or admissions made or entered during the pre-trial conferenceshall be reduced in writing and signed by the accused and counsel;otherwise, they cannot be used against the accused. The agreementscovering the matters referred to in Section 1, Rule 118 of the Rules ofCourt shall be approved by the court.

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All proceedings during the pre-trial shall be recorded, the transcriptsprepared, and the minutes signed by the parties or their counsels.29

4. Pre-Trial Order

The court shall issue a pre-trial order within ten (10) days after thetermination of the pre-trial, setting forth the actions taken during the pre-trial conference, the facts stipulated, the admissions made, evidencemarked, the number of witnesses to be presented, and the schedule oftrial. The order shall bind the parties and control the course of actionduring the trial.

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26Id., Sec. 3.

27Id., Sec. 4.

28Id., Sec. 5.

29Id., Sec. 6.

30Id., Sec. 7.


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I. Trial

1. Continuous Trial; Affidavits In Direct Examination

The court shall endeavor to conduct continuous trial which shall not

exceed three (3) months from the date of the issuance of the pre-trialorder.31

For this purpose, affidavits in lieu of direct examination shall beused, subject to cross-examination and the right to object to inadmissibleportions of the affidavit.

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2. Submission of Memoranda

The court may require the parties to submit their respectivememoranda and if possible, in electronic form, within a non-extendibleperiod of thirty (30) days from the date the case is submitted fordecision.

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3. Period to Decide and Dispose of the Case

With or without any memoranda filed, the court shall have a period ofsixty (60) days to decide the case counted from the last day of the 30-dayperiod to file the memoranda.

34 The court shall dispose the case within a

period of ten (10) months from the date of arraignment.35

4. Pro-bono Lawyers

If the accused cannot afford the services of counsel or there is noavailable public attorney, the court shall require the Integrated Bar of thePhilippines to provide pro bono lawyers for the accused.36

J. Civil Action and Liability

1. Institution of Civil Action

When a criminal action is instituted, the civil action for the recovery ofcivil liability arising from the offense charged shall be deemed institutedwith the criminal action, unless the complainant waives the civil action,reserves the right to institute it separately or institutes the civil action priorto the criminal action. 37

31Id., Rule 17, Sec. 1.

32Id., Sec. 2.

33Id., Sec. 3.

34Id.

35Id., Sec. 4.

36Id., Sec. 5.

37Id, Rule 10, Sec. 1.


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Unless the civil action has been instituted prior to the criminal action,the reservation of the right to institute separately the civil action shall bemade during arraignment.

38

2. Award of Damages to Agency for Restoration and Rehabilitation

In case civil liability is imposed or damages are awarded, the filing andother legal fees shall be imposed on said award in accordance with Rule141 of the Rules of Court, and the fees shall constitute a first lien on the

judgment award. The damages awarded in cases where there is noprivate offended party, less the filing fees, shall accrue to the funds of theagency charged with the implementation of the environmental lawviolated. The award shall be used for the restoration and rehabilitation ofthe environment adversely affected.

39

3. Subsidiary Liabil ity

In case of conviction of the accused and subsidiary liability is allowedby law, the court may, by motion of the person entitled to recover under

judgment, enforce such subsidiary liability against a person or corporationsubsidiarily liable under Article 102 and Article 103 of the Revised PenalCode.40

K. Provisional Remedies

1. Attachment

The provisional remedy of attachment under Rule 127 of the Rules ofCourt may be availed of in environmental cases.

41

2. EPO and TEPO in Criminal Cases

The procedure for the issuance of Environmental Protection Orders(EPO) and Temporary Environmental Protection Orders (TEPO) shall begoverned by Rule 2 of the Rules of Procedure for Environmental Cases.

42

38Id., second paragraph.

39Id., Rule 10, Sec. 1.

40Id., Rule 18, Sec. 1.

41Id., Rule 13, Sec. 1.

42Id., Sec. 2; See Section on Civil Cases: Environmental Protection Order.


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L. Criminal SLAPP Suits

1. Defined

Strategic lawsuit against public participation (SLAPP) refers to an

action whether civil, criminal or administrative, brought against anyperson, institution or any government agency or local government unit orits officials and employees, with the intent to harass, vex, exert unduepressure or stifle any legal recourse that such person, institution orgovernment agency has taken or may take in the enforcement ofenvironmental laws, protection of the environment or assertion ofenvironmental rights.

43

2. SLAPP Suit; Ground for a Motion to Dismiss in a Criminal Case

Upon the filing of an information in court and before arraignment, the

accused may file a motion to dismiss on the ground that the criminalaction is a Strategic Lawsuit Against Public Participation or a SLAPPsuit.

44

3. Summary Hearing; Prosecutions and Accused Quantum ofEvidence Distinguished

The hearing on the defense of a SLAPP shall be summary in nature.The parties must submit all the available evidence in support of theirrespective positions. The party seeking the dismissal of the case mustprove by substantial evidence that his acts for the enforcement ofenvironmental law are a legitimate action for the protection, preservationand rehabilitation of the environment. The party filing the action assailedas a SLAPP shall prove by preponderance of evidence that the action isnot a SLAPP.

45

4. Determination by the Court

The court shall grant the motion if the accused establishes in thesummary hearing that the criminal case has been filed with intent toharass, vex, exert undue pressure or stifle any legal recourse that anyperson, institution or the government has taken or may take in theenforcement of environmental laws, protection of the environment orassertion of environmental rights. If the court denies the motion, it shallimmediately proceed with the arraignment of the accused.

46

43Id., Rule 1, Sec. 4 (g); Rule 6, Sec. 1.

44Id., Rule 19, Sec. 1; See Section on Civil Cases: SLAPP Suits.

45Id., Sec. 2.

46Id., Sec. 3.


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II. Civil Cases

Limits on the Jurisdiction of First and Second Level Courts in OrdinaryCivil Actions involving Environmental Laws

1. Primary Jur isdiction of the DENR

The jurisdiction of the DENR over matters which are addressed to itssound discretion as the government agency entrusted with the regulationof activities coming under its special technical knowledge and training willnot be interfered with by the courts.

47The DENR possesses wide latitude

of discretion in determining the appropriate actions to be taken to preserveand manage natural resources, and the proper parties who should enjoythe privilege of utilizing these resources.

48 As the law confines in the

DENR the power to determine these particular questions or matters, itsjurisdiction prevails over the courts.

49Settled is the rule that the courts will

defer to the decisions of the administrative offices and agencies by reasonof their expertise and experience in the matters assigned to them pursuantto the doctrine of primary jurisdiction. Administrative decisions on matterswithin the jurisdiction of administrative bodies are to be respected and canonly be set aside on proof of grave abuse of discretion, fraud, or error oflaw.

50

2. Doctrine of Primary Jurisdiction L imits Court Jurisdict ion

The enforcement of forestry laws, rules and regulations, and theprotection, development, and management of forest lands fall within theprimary and special responsibilities of the DENR. By the very nature of itsfunction, the DENR should be given a free hand unperturbed by judicialintrusion to determine a controversy which is well within its jurisdiction.The doctrine of primary jurisdiction does not warrant a court to arrogateunto itself the authority to resolve a controversy, the jurisdiction over whichis initially lodged with an administrative body of special competence.51

47 Lianga Bay Logging Co., Inc. v. Enage, G.R. No. 30637, July 16, 1987, 152 SCRA 80;

Ganitano v. Secretary of Agriculture and Natural Resources, G.R. No. 21167, March 31,1966, 16

SCRA 543.48Lim v.The Secretary of Agriculture and Natural Resources, G.R. No. 26990, August 31, 1970,

34 SCRA 751; Director of Forestry v. Muoz, G.R. No. 24796, June 28, 1968, 23 SCRA 1183.49

Lianga Bay Logging Co., Inc. v. Enage, supra note47.50

Celestial Nickel Mining Exploration v. Macroasia, G.R. No. 169080, December 19, 2007, 541SCRA 166.51

Dagudag v. Paderanga, A.M. No. RTJ-06-2017, June 19, 2008, 555 SCRA 217; Euro-MedLaboratories v. Province of Batangas, G.R. No. 148106, July 17, 2006, 495 SCRA 301; Tabao v.Lilagan, A.M. No. RTJ- 01-1651, September 4, 2001, 364 SCRA 322; Paat v. Court of Appeals,G.R. No. 111107, January 10, 1997, 266 SCRA 167;


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3. Exhaustion of Adminis trative Remedies; Condition Precedent

The principle of exhaustion of administrative remedies applies insofaras the review of the decisions of the Secretary of the DENR and hissubordinates is concerned. The doctrine of exhaustion of administrativeremedies is basic. Courts should not entertain suits unless the availableadministrative remedies have first been resorted to and the properauthorities have been given an appropriate opportunity to act and correcttheir alleged errors, if any, committed in the administrative forum.

52

Exhaustion of the remedies in the administrative forum, being acondition precedent prior to recourse to the courts and, more importantly,being an element of ones right of action, is too significant to be waylaid bythe courts.

53 It is a pre-condition that all the means afforded by the

administrative processes should first be availed of before a court's judicialpower can be sought. The premature judicial action is fatal to one's causeof action.

54Accordingly, absent any finding of waiver or estoppel, the case

is susceptible to dismissal for lack of cause of action.55In the case of theSecretary of the DENR, failure to appeal his decision to the Office of thePresident is a failure to exhaust administrative remedies.

56

4. Failure to Exhaust Administrative Remedies May ConstituteForum-Shopping

If agreements of sale pertain to shares of stock which representownership of mining rights or interest in mining agreements, the power ofthe MGB to rule on the validity of the questioned agreements of sale isinextricably linked to the very nature of such agreements over which theMGB has jurisdiction under the law. Unavoidably, there is identity of

reliefs if the same issue is brought to the RTC. Forum shopping existswhen both actions involve the same transactions, same essential factsand circumstances and raise identical causes of actions, subject matter,and issues. The case instituted with the RTC is correctly ordereddismissed on the ground of forum shopping. Not only is there forum-shopping, but also failure to exhaust administrative remedies, by opting togo ahead in seeking reliefs from the court even while those same reliefswere appropriately awaiting resolution by the MGB.

57

A complaint in environmental cases is required to include a certificationagainst forum-shopping.58

52Factoran v. Court of Appeals, G.R. No. 93540, December 13, 1999, 320 SCRA 530; Tabao v.

Lilagan, supranote 51; Dagudag v. Paderanga, supranote 51.53

Paat v. Court of Appeals, supranote 51.54

Bangus Fisherfolk v. Lanzanas, G.R. No. 131442, July 10, 2003, 405 SCRA 530.55

Dy v. Court of Appeals, G.R. No. 121587, March 9, 1999, 304 SCRA 331.56

Tan v. Director of Forestry, G.R. No. 24548, October 27, 1983, 125 SCRA 302.57

Lepanto Consolidated Mining v. WMC Resources International, G.R. Nos. 153885 and 156214,September 24, 2003, 412 SCRA 101.58

RULES OF PROCEDURE IN ENVIRONMENTAL CASES, Rule 2, Sec. 3.


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5. Exceptions to Exhaustion of Administrative Remedies

The doctrine does not apply in the following cases: 59

1) Where the issue is purely a legal one, and nothing of an

administrative nature is to be and can be done

60

2) Where insistence on its observance would result in nullification ofthe claim being asserted

61

3) Where the controverted act is patently illegal or was performedwithout jurisdiction or in excess of jurisdiction;

4) Where the respondent is a department secretary, whose acts as analter ego of the President bear the implied or assumed approval ofthe latter, unless actually disapproved by him;

5) Where there are circumstances indicating the urgency of judicialintervention;

62and

6) When the rule does not provide a plaintiff speedy and adequate

remedy

63

.7) In an action for damages with preliminary mandatory injunction filedbefore the Regional Trial Court alleging that a timber licensee andIFMA holder has no authority to keep custody of confiscated timberand conveyances because it is a private entity and mere depositoryof the timber and conveyances, not a deputized enforcementofficer, it was held that there was no need for exhaustion ofadministrative remedies. Despite the fact that there were ongoingadministrative confiscation proceedings being conducted by theDENR, filing the action with the trial court did not violate thedoctrine of exhaustion of remedies because it was for the purposeof transferring the custody of the confiscated products to theCENRO and the Office of the Government Prosecution and forresolving the cases with dispatch.64

8) A petition for mandamus filed with the Regional Trial Court tocompel the DENR and its Environmental Management Bureau(EMB) to issue a Certificate of Non-Coverage under theEnvironmental Impact Assessment System is a proper remedywhere the project is not an environmentally critical project or

59Cuevas v. Pineda, G.R. No. 47617, August 29, 1986, 143 SCRA 674.

60Dauan v. Secretary of Agriculture and Natural Resources, et. al. , G.R. No. 19547, January 31,

1967, 19 SCRA 223; Del Mar v. Philippine Veterans Administration, G.R. No. 27299, June 27,1973, 51 SCRA 340; Bagatsing v. Ramirez, G.R. No. 41631, December 17, 1976, 74 SCRA 306;

Aguilar v. Valencia, G.R. No. 30396, July 30, 1971, 40 SCRA 210, and Commissioner ofImmigration v. Vamenta, G.R. No. 34030, May 31, 1972, 45 SCRA 342.61

Gravador v. Mamigo, G.R. No. 24989, July 21, 1967, 20 SCRA 742.62

Gonzales v. Hechanova, G.R. No. 21897, October 22, 1963, 9 SCRA 230;Abaya v. Villegas,G.R. No. 25641, December 17, 1966, 18 SCRA 1034; Mitra v. Subido, G.R. No. 21691,September 15, 1967, 21 SCRA 127.63

Cipriano v. Marcelino, G.R. No. 27793, February 28, 1972, 43 SCRA 291.64

PICOP Resources v. Calo, G.R. No. 161798, October 20, 2004, 441 SCRA 46.


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located in an environmentally critical area. It is the ministerial dutyof the EMB to issue the Certificate of Non-Coverage and saidagency can be compelled to perform its duty through a petition formandamus filed with the Regional Trial Court even withoutexhausting administrative remedies by first appealing the EMB

decision to the DENR Secretary.

65

6. Environmental Licenses and Permits are Not Contracts Protectedby the Non-Impairment and Due Process Clauses

Timber licenses, permits, and license agreements are the principalinstruments by which the State regulates the utilization and disposition offorest resources to the end that public welfare is promoted. They merelyevidence a privilege granted by the State to qualified entities, and do notvest in the latter a permanent or irrevocable right to the particularconcession area and the forest products therein. They may be validly

amended, modified, replaced or rescinded by the Chief Executive whennational interest so requires. They are not deemed contracts within thepurview of the due process of law clause.

66

This holds true as well for mining exploration permits under Rep. ActNo. 7942. Exploration permits merely evidence a privilege granted by theState, which may be amended, modified or rescinded when the nationalinterest so requires. This is necessarily so since the exploration,development and utilization of the countrys natural mineral resources arematters impressed with great public interest. Like timber permits, miningexploration permits do not vest in the grantee any permanent orirrevocable right within the purview of the non-impairment of contract anddue process clauses of the Constitution, since the State, under its all-encompassing police power, may alter, modify or amend the same, inaccordance with the demands of the general welfare.

67

The determination of what is in the public interest is necessarily vestedin the State as owner of all mineral resources. Even if a license is valid, itcan still be validly revoked by the State in the exercise of police power.The exercise of such power through a presidential proclamation is inaccord with jura regalia, which reserves to the State ownership of allnatural resources. This Regalian doctrine is an exercise of its sovereign

65Republic v. City of Davao, G.R. No. 148622, September 12, 2002, 388 SCRA 691.

66PICOP Resources v. Base Metals Mineral Resources, G.R. No. 163509, December 6, 2006,

510 SCRA 400; Oposa v. Factoran, G.R. No. 101083, July 30, 1993, 190 SCRA 673; Ysmael v.Deputy Executive Secretary, G.R. No. 79538, October 18, 1990, 224 SCRA 992;Tan v. Directorof Forestry, supranote 56.67

Southeast Mindanao Gold Mining v. Balite Portal Mining Cooperative, G.R. No. 135190, April 3,2002; Sta. Ines Melale Forest Products Corporation v. Macaraig, Jr., G.R. No. 80849, December2, 1998, 299 SCRA 491, citingTan v. Director of Forestry, supranote 56, andOposa v. Factoran,supranote 66.


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power as owner of lands of the public domain and of the patrimony of thenation, the mineral deposits of which are a valuable asset. A license is nota contract to which the protection accorded by the non-impairment clausemay extend. Even if the license were, it is settled that provisions ofexisting laws and a reservation of police power are deemed read into it,

because it concerns a subject impressed with public welfare. The non-impairment clause must yield to the police power of the state.68

6.1. Exception to the Rule

However, Sec. 40 of the Philippine Mining Act of 1995 requiring theapproval of the President with respect to assignment or transferof FTAAs, if made applicable retroactively, would be tantamount to animpairment of the obligations under said contract as it would effectivelyrestrict the right of the parties thereto to assign or transfer theirinterests in the said FTAA. By imposing a new condition apart from

those already contained in the agreement, before the parties tothe FTAA may assign or transfer their rights and interest in the saidagreement, Sec. 40 of the Philippine Mining Act of 1995, if made toapply to said FTAA, will effectively modify the terms of the originalcontract and thus impair the obligations of the parties thereto andrestrict the exercise of their vested rights under the originalagreement. Such modification to the FTAA, particularly in theconditions imposed for its valid transfer, is equivalent to an impairmentof said contract in violation of the Constitution.

69

7. Revocation of License or Franchise as an Exercise of Police Power

The grant of license does not create irrevocable rights, neither is itproperty or property rights. No franchise or right can be availed of todefeat the proper exercise of police power. The State has inherent powerenabling it to prohibit all things hurtful to comfort, safety, and welfare ofsociety. Pursuant to these principles, the Secretary of the DENR has theauthority to revoke, on valid grounds, timber licenses issued by theDirector of Forestry. Where there is supporting evidence, the revocation ofa timber license is a valid exercise of this power.

70

68 Republic of the Philippines v. Rosemoor Mining and Development Corporation , G. R. No.

149927, March 30, 2004, 426 SCRA 517.69

Lepanto Consolidated Mining v. WMC Resources International, G.R. No. 162331, November20, 2006, 507 SCRA 315.70

Tan v. Director of Forestry, supranote 56.


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8. Courts should stand Clear from Public Policy Activity of GrantingEnvironmental Licenses, Permits and Franchises

The courts recognize the wide latitude of discretion possessed by thegovernment in determining the appropriate actions to be taken to preserve

and manage natural resources, and the proper parties who should enjoythe privilege of utilizing these resources, more so where the interests of aprivate logging company are pitted against that of the public at large onthe pressing public policy issue of forest conservation. The judiciary willstand clear from a public policy activity where the government isundertaking an assessment and evaluation of all timber licenseagreements entered into, and permits or licenses issued.

71

A. ReplevinSuits

1. Courts should dismiss Replevin Suits over Property Seized byDENR under its Administrative Confiscation Powers

The assumption by a trial court of a replevin suit filed by owners ofitems apprehended or seized constitutes an unjustified encroachment intothe DENRs prerogative to undertake administrative confiscationproceedings. The doctrine of primary jurisdiction does not warrant a courtto arrogate unto itself the authority to resolve a controversy, the

jurisdiction over which is initially lodged with an administrative body ofspecial competence.

72

Dismissal of a replevin suit for lack of cause of action in view of theowners failure to exhaust administrative remedies is the proper course ofaction for a court, not to assume jurisdiction over the case and,consequently, issue the writ ordering the return of the seized items.

73

2. Judge demonst rates Ignorance of the Law in Entertaining ReplevinSuits

A judge's act of taking cognizance of a replevin suit over propertyunder DENR administrative confiscation proceedings or under custodialegis, if the case is already with the public prosecutor or another court,

demonstrates ignorance of the law.

74

71Lim, Sr. v. The Secretary of Agriculture and Natural Resources, G.R. No. 26990, August 31,

1970, 34 SCRA 751; Director of Forestry v. Muoz, G.R. No. 24796, June 28, 1968, 23 SCRA1183; Ysmael v. Deputy Executive Secretary, supranote 66.72

Paat v. Court of Appeals, supra note 51; Tabao v. Lilagan, supra note 51.73

Paat v. Court of Appeals, supranote 51; Dy v. Court of Appeals, supranote 55.74

Tabao v. Lilagan, supra note 51.


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3. Seized and Apprehended property is in Custodia Legis andbeyond reach of Replevin

Property apprehended and seized by DENR officials pursuant toadministrative confiscation proceedings is held in custodia legis and,

hence, beyond the reach of replevin. When a thing is in official custody ofa judicial or executive officer in pursuance of his execution of a legal writ,replevinwill not lie to recover it.

75

4. Court cannot hold DENR officials in Contempt for Failure to followReplevinOrder; Duty of Sheriff executing ReplevinOrder

There can be no contempt against DENR officials who fail to follow areplevin order that was issued with grave abuse of discretion.

76 The

prudent recourse for a sheriff enforcing a writ of replevin, upon beinginformed that the property involved is in the custody of the DENR by virtue

of administrative seizure and confiscation, is to desist from executing thewarrant and to make a partial return by conveying the information to thecourt for further instructions.

77

5. Consent to be sued needed in Replevin Suits against DENROfficials

Actions before the courts contesting custody over forest products,implements and conveyances seized and confiscated by forest officialsunder Pres. Decree No. 705, as amended by Exec. Order No. 277 areconsidered suits against the State. In implementing and enforcing Secs.77-A and 89 of the Forestry Code, forest officers performing duties andfunctions within the limits of their authority represent the DENR and maynot be proceeded against without the State's consent.78

B. Complaint

1. Who May File

Any real party in interest, including the government and juridicalentities authorized by law, may file a civil action involving the enforcementor violation of any environmental law.

79

75Factoran v. Court of Appeals, supranote 52; Calub v. Court of Appeals, G.R. No. 115634, April

27, 2000, 331 SCRA 55; Mamanteo, et. al. v. Deputy Sheriff Magumun, A.M. No. P-98-1264, July28, 1999, 331 SCRA 55.76

Factoran v. Court of Appeals, supranote 52.77

Mamanteo, et. al. v. Deputy Sheriff Magumun, supranote 75; Calub v. Court of Appeals, supranote 75.78

Calub v. Court of Appeals, supra note 75.79

RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, Rule 2, Sec. 4.


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2. Verified Complaint

The complaint shall be verified and contain the names of the parties,their addresses, the cause of action, and the reliefs prayed for.

80

3. Evidence to be attached to the Complaint; Form of Affidavits

The plaintiff shall attach to the verified complaint all evidence provingor supporting the cause of action consisting of the affidavits of witnesses,documentary evidence and, if possible, object evidence. The affidavitsshall be in question and answer form and shall comply with the rules ofadmissibility of evidence.81

4. Other Requirements

The complaint shall state that it is an environmental case and the lawinvolved. The complaint shall also include a certification against forumshopping. If the complaint is not an environmental complaint, the presiding

judge shall refer it to the executive judge for re-raffle.82

5. Filing Fees

The payment of filing and other legal fees by the plaintiff shall bedeferred until after judgment unless the plaintiff is allowed to litigate as anindigent. It shall constitute a first lien on the judgment award.

83

6. Assignment by Raffle

If there is only one (1) designated branch in a multiple-sala court, theexecutive judge shall immediately refer the case to said branch. If thereare two (2) or more designated branches, the executive judge shallconduct a special raffle on the day the complaint is filed.84

7. Agency Concerned to be Furnished Complaint

Upon the filing of the complaint in environmental cases, the plaintiff isrequired to furnish the government or the appropriate agency, althoughnot a party, a copy of the complaint. Proof of service upon the governmentor the appropriate agency shall be attached to the complaint.85

80Id., Sec. 3.

81Id.

82Id.

83Id., Sec. 12.

84Id., Sec. 7.

85Id., Sec. 6.


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C. Environmental Protection Order

1. Definition

Environmental protection order (EPO) refers to an order issued by thecourt directing or enjoining any person or government agency to performor desist from performing an act in order to protect, preserve orrehabilitate the environment.

86

2. Temporary Environmental Protection Order (TEPO)

If it appears from the verified complaint with a prayer for the issuanceof an Environmental Protection Order (EPO) that the matter is of extremeurgency and the applicant will suffer grave injustice and irreparable injury,the executive judge of the multiple-sala court before raffle or the presiding

judge of a single-sala court, as the case may be, may issue ex parte aTemporary Environmental Protection Order (TEPO) effective for onlyseventy-two (72) hours from date of the receipt of the TEPO by the partyor person enjoined. Within said period, the court where the case isassigned, shall conduct a summary hearing to determine whether theTEPO may be extended until the termination of the case.

87

The issuance of a TEPO may also be prayed for in a petition for thewrit of kalikasan.

88 It may also be granted in a petition for the writ of

continuing mandamus.89

3. Monitoring, Lifting, Exemption from Bond Requirement, andConversion to Permanent EPO

The court where the case is assigned shall periodically monitor theexistence of acts that are the subject matter of the TEPO, even if issuedby the executive judge, and may lift the same at any time ascircumstances may warrant. The applicant shall be exempted from theposting of a bond for the issuance of a TEPO.

90

The grounds for motion to dissolve a TEPO shall be supported byaffidavits of the party or person enjoined which the applicant may oppose,also by affidavits. The TEPO may be dissolved if it appears after hearingthat its issuance or continuance would cause irreparable damage to theparty or person enjoined, while the applicant may be fully compensated for







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such damages as he may suffer and subject to the posting of a sufficientbond by the party or person enjoined.

91

In the judgment, the court may convert the TEPO to a permanentEPO.

92

4. Report to the Supreme Court

The judge shall report any action taken on a TEPO, EPO, TRO or apreliminary injunction, including its modification and dissolution, to theSupreme Court, through the Office of the Court Administrator, within ten(10) days from the action taken.

93

5. Prohibition against Injunction

Except the Supreme Court, no court can issue a TRO or writ of

preliminary injunction against lawful actions of government agencies thatenforce environmental laws or prevent violations thereof.94

D. Summons and Court Processes

1. Who may Effect Service

The summons, orders, and other court processes may be served bythe sheriff, his deputy or other proper court officer, or for justifiablereasons, by the counsel or representative of the plaintiff or any suitableperson authorized or deputized by the court issuing the summons. Anyprivate person who is authorized or deputized by the court to servesummons, orders, and other court processes shall, for that purpose, beconsidered an officer of the court.

95

2. Service of Summons; How Effected

The summons shall be served on the defendant, together with a copyof an order informing all parties that they have fifteen (15) days from thefiling of an answer, within which to avail of interrogatories to parties underRule 25 of the Rules of Court and request for admission by adverse partyunder Rule 26, or at their discretion, make use of depositions under Rule23 or other measures under Rules 27 and 28. Should personal andsubstituted service fail, summons by publication shall be allowed. In the

91Id., Sec. 9.


93Id., Rule 2, Sec. 11.

94Id., Sec. 10.

95Id., Sec. 13.


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case of juridical entities, summons by publication shall be done byindicating the names of the officers or their duly authorizedrepresentatives.96

E. Answer

1. Verified Answer

Within fifteen (15) days from receipt of summons, the defendant shallfile a verified answer to the complaint and serve a copy thereof on theplaintiff.

97

2. Evidence to be Attached to Answer

The defendant shall attach affidavits of witnesses, reports, studies of

experts, and all evidence in support of the defense.

98

3. Defenses and Claims

Affirmative and special defenses not pleaded shall be deemed waived,except lack of jurisdiction. Cross-claims and compulsory counterclaims notasserted shall be considered barred. The answer to counterclaims orcross-claims shall be filed and served within ten (10) days from service ofthe answer in which they are pleaded.

99

4. Failure to Answer

Should the defendant fail to answer the complaint within the periodprovided, the court shall declare defendant in default and upon motion ofthe plaintiff, shall receive evidence ex parte and render judgment basedthereon and the reliefs prayed for.

100

F. Pleadings Allowed and Prohibited

1. Allowed Pleadings and Motions

The pleadings and motions that may be filed are complaint, answerwhich may include compulsory counterclaim and cross-claim, motion for

96Id.

97Id., Sec. 14.

98Id.

99Id.

100Id., Sec. 15.


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intervention, motion for discovery and motion for reconsideration of thejudgment.

101

Motion for postponement, motion for new trial, and petition for relieffrom judgment shall be allowed in highly meritorious cases or to prevent a

manifest miscarriage of justice.

102

2. Prohib ited Pleadings and Motions

1) Motion to dismiss the complaint;2) Motion for a bill of particulars;3) Motion for extension of time to file pleadings, except to file answer,

the extension not to exceed fifteen (15) days;4) Motion to declare the defendant in default;5) Reply and rejoinder; and6) Third party complaint.

103

G. Environmental Class Actions

1. Right to Balanced and Healthful Ecology is an Actionable Right

An action for the revocation of all timber licenses on the ground of theviolation of the right to a balanced and healthful ecology may be broughtas a class action suit and by parties representing future generations onthe principle of inter-generational responsibility. The constitutional right toa balanced and healthful ecology constitutes an actionable right as basisfor a cause of action. A denial or violation of that right by the other whohas the correlative duty or obligation to respect or protect the same givesrise to a cause of action.104

As a constitutionally guaranteed right of every person, it carries thecorrelative duty of non-impairment. This is but in consonance with thedeclared policy of the state "to protect and promote the right to health ofthe people and instill health consciousness among them."

105 This right

implies, among other things, the judicious management and conservationof the countrys resources, which duty is reposed in the DENR.

106

101Id., Sec. 1.

102Id.

103Id., Sec. 2.

104Oposa v. Factoran, supranote 66.

105Laguna Lake Development Authority v. Court of Appeals, G.R. No. 110120, March 16, 1994,

231 SCRA 292.106

Province of Rizal v. Executive Secretary, G.R. No. 129546, December 13, 2005, 477 SCRA436.


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The right to a balanced and healthful ecology need not even be in theConstitution for it is assumed to exist from the inception of mankind and itis an issue of transcendental importance with intergenerationalimplications. The State cannot escape its obligation to future generationsof Filipinos to keep the waters clean and clear as humanly possible.

107

2. Class Action in Representation of Future Generations Allowedunder the Princip le of Inter-Generational Respons ibili ty

The personality to sue on behalf of succeeding generations is basedon the concept of intergenerational responsibility insofar as the right to abalanced and healthful ecology is concerned. Such a right considers the"rhythm and harmony of nature." Nature means the created world in itsentirety. Such rhythm and harmony indispensably include, inter alia, the

judicious disposition, utilization, management, renewal and conservationof the country's forest, mineral, land, waters, fisheries, wildlife, off-shoreareas, and other natural resources to the end that their exploration,

development, and utilization be equitably accessible to the present, aswell as future generations. Every generation has a responsibility to thenext to preserve the rhythm and harmony of nature for the full enjoymentof a balanced and healthful ecology. The minors' assertion of their right toa sound environment constitutes the performance of their obligation toensure the protection of that right for the generations to come.

108

3. Real Parties in Interest and Legal Standing Distinguished; LegalStanding Sufficient in Constitutional Questions Involving PublicInterest

A farmers and indigenous peoples cooperative organized underPhilippine laws representing a community actually affected by the miningactivities, members of said cooperative,

as well as other residents of areas

also affected by mining activities, have standing to raise theconstitutionality of a questioned FTAA by alleging a personal andsubstantial injury. When a case involves constitutional questions, thecourts are not concerned with whether petitioners are real parties ininterest, but with whether they have legal standing. Because of itsconstitutional and public policy underpinnings, standing is very differentfrom questions relating to whether a particular plaintiff is the real party ininterest or has capacity to sue. Standing is a special concern in

constitutional law because, in some cases, suits are brought not by partieswho have been personally injured by the operation of a law or by officialaction taken, but by concerned citizens, taxpayers or voters who actuallysue in the public interest. Hence, the question in standing is whether suchparties have "alleged such a personal stake in the outcome of the

107Metropolitan Manila Development Authority v. Concerned Residents of Manila Bay, G.R. Nos.

171947-48, December 18, 2008, 524 SCRA 661.108

Oposa v. Factoran, supranote 66.


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controversy as to assure that concrete adverseness which sharpens thepresentation of issues upon which the court so largely depends forillumination of difficult constitutional questions.109

H. Cit izen Suit

1. Who May File

Any Filipino citizen in representation of others, including minors orgenerations yet unborn, may file an action to enforce rights or obligationsunder environmental laws.

110

2. Order to Intervene; Publication

Upon the filing of a citizen suit, the court shall issue an order whichshall contain a brief description of the cause of action and the reliefsprayed for, requiring all interested parties to manifest their interest to

intervene in the case within fifteen (15) days from notice thereof. Theplaintiff may publish the order once in a newspaper of a general circulationin the Philippines or furnish all affected barangays copies of said order.

111

3. Citizen Suits under Specific Laws

Citizen suits filed under Rep. Act No. 8749 (Clean Air Act) and Rep.Act No. 9003 (Solid Waste Management Act) shall be governed by theirrespective provisions.

112

4. Deferment on Filing and Legal Fees

The court shall defer the payment of filing and other legal fees untilafter judgment that shall serve as first lien on the judgment award.

113

5. Relief in Citizen Suit

If warranted, the court may grant to the plaintiff proper reliefs, whichshall include the protection, preservation or rehabilitation of theenvironment and the payment of attorneys fees, costs of suit and otherlitigation expenses. It may also require the violator to submit a program ofrehabilitation or restoration of the environment, the costs of which shall beborne by the violator, or to contribute to a special trust fund for that

purpose subject to the control of the court.

114

109La Bugal-Blaan Tribal Association v. Ramos, G.R. No. 127882, January 27, 2004, 421 SCRA

148.110

RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, Rule 2, Sec. 5.111

Id.112

Id.113

Id., Sec. 12.114

Id., Rule 5, Sec. 1.


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6. Citizen Suits under the Clean Air Act (Rep. Act No. 8749) and theSolid Waste Management Act (Rep. Act No. 9003)

Any citizen may file an appropriate civil, criminal or administrativeaction in the proper courts against:

1) Any person who violates or fails to comply with the provisions of theAct or its implementing rules and regulations;

2) The Department or other implementing agencies with respect toorders, rules and regulations issued inconsistent with the Act; and

3) Any public officer who willfully or grossly neglects the performanceof an act specifically enjoined as a duty under the Act or itsimplementing rules and regulations; or abuses his authority in theperformance of his duty; or, in any manner, improperly performs hisduties under the Act or its implementing rules and regulations. Nosuit can be filed until a thirty-day (30) notice has been takenthereon.

The court shall exempt such action from the payment of filing fees,except fees for actions not capable of pecuniary estimations, and shalllikewise, upon prima facie showing of the non-enforcement orviolation complained of, exempt the plaintiff from the filing of an injunctionbond for the issuance of a preliminary injunction.

115

Within thirty (30) days, the court shall make a determination if thecomplaint is malicious and/or baseless and shall accordingly dismiss theaction and award attorneys fees and damages.

116

7. Citizen Suit to Enforce Right to Clean Air

Petitioners in a citizen suit to enforce their fundamental legal right toclean air have legal standing in a petition for mandamus brought againstthe State. A partys standing is a procedural technicality which may be setaside, in view of the importance of the issue raised, if it involves one oftranscendental importance to the public. The right to clean air is an issueof paramount importance and is impressed with public interest. Theconsequences of the counter-productive and retrogressive effects of aneglected environment due to emissions of motor vehicles immeasurablyaffect the well-being of the public.

117

115Rep. Act No. 8749 [1999], Sec. 41; Rep. Act No. 9003 [2001], Sec. 52.

116Id.

117Henares v. Land Transportation Franchising and Regulatory Board, GR No. 158290, October

23, 2006, 505 SCRA 104. This case, however, was dismissed as the relief sought for, requiringthe use of natural gas in public utility vehicles, is not covered under the law and, hence, notsubject to mandamus. Although dismissed, the case took note of the legal standing of thepetitioners.


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I. Pre-Trial

1. Notice and Schedule

Within two (2) days from the filing of the answer to the counterclaim or

cross-claim, if any, the branch clerk of court shall issue a notice of pre-trialto be held not later than one (1) month from the filing of the last pleading.The court shall schedule the pre-trial and set as many pre-trialconferences as may be necessary within a period of two (2) months,counted from the date of the first pre-trial conference.118

2. Pre-trial Brief

At least three (3) days before the pretrial, the parties shallsubmit pre-trial briefs containing the following:

1) A statement of their willingness to enter into an amicablesettlement, indicating the desired terms thereof or to submit thecase to any of the alternative modes of dispute resolution;

2) A summary of admitted facts and proposed stipulation of facts;3) The legal and factual issues to be tried or resolved. For each

factual issue, the parties shall state all evidence to support theirpositions thereon. For each legal issue, the parties shall statethe applicable law and jurisprudence supporting their respectivepositions thereon;

4) The documents or exhibits to be presented, includingdepositions, answers to interrogatories and answers to writtenrequest for admission by adverse party, stating the purposethereof;

5) A manifestation of their having availed of discovery proceduresor their intention to avail themselves of referral to acommissioner or panel of experts;

6) The number and names of the witnesses and the substance oftheir affidavits;

7) Clarificatory questions from the parties; and8) List of cases arising out of the same facts pending before other

courts or administrative agencies.119

3. Effect of Failure to Comply or File Brief

Failure to comply with the required contents of a pre-trial brief may bea ground for contempt. Failure to file the pre-trial brief shall have the sameeffect as failure to appear at the pre-trial.120

118RULES OF COURT FOR ENVIRONMENTAL CASES, Rule 3, Sec. 1.

119Id., Sec. 2.

120Id.


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4. Mediation

At the start of the pre-trial conference, the court shall inquire from theparties if they have settled the dispute; otherwise, the court shallimmediately refer the parties or their counsel, if authorized by their clients,

to the Philippine Mediation Center (PMC) unit for purposes of mediation. Ifnot available, the court shall refer the case to the clerk of court or legalresearcher for mediation.

121

Mediation must be conducted within a non-extendible period of thirty(30) days from receipt of notice of referral to mediation. The mediationreport must be submitted within ten (10) days from the expiration of the30-day period.122

5. Preliminary Conference

If mediation fails, the court will schedule the continuance of the pre-trial. Before the scheduled date of continuance, the court may refer thecase to the branch clerk of court for a preliminary conference for thefollowing purposes:

1) To assist the parties in reaching a settlement;2) To mark the documents or exhibits to be presented by the parties

and copies thereof to be attached to the records after comparisonwith the originals;

3) To ascertain from the parties the undisputed facts and admissionson the genuineness and due execution of the documents markedas exhibits;

4) To require the parties to submit the depositions taken under Rule23 of the Rules of Court, the answers to written interrogatoriesunder Rule 25, and the answers to request for admissions by theadverse party under Rule 26;

5) To require the production of documents or things requested by aparty under Rule 27 and the results of the physical and mentalexamination of persons under Rule 28;

6) To consider such other matters as may aid in its prompt disposition;7) To record the proceedings in the Minutes of Preliminary

Conference to be signed by both parties or their counsels;8) To mark the affidavits of witnesses, which shall be in question and

answer form, and shall constitute the direct examination of thewitnesses; and

9) To attach the minutes, together with the marked exhibits before thepre-trial proper.123

121Id., Sec. 3.

122Id.

123Id., Sec. 4.


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The parties or their counsel must submit to the branch clerk of courtthe names, addresses and contact numbers of the affiants.124

During the preliminary conference, the branch clerk of court shall also

require the parties to submit the depositions taken under Rule 23 of theRules of Court, the answers to written interrogatories under Rule 25 andthe answers to request for admissions by the adverse party under Rule26. The branch clerk of court may also require the production ofdocuments or things requested by a party under Rule 27 and the results ofthe physical and mental examination of persons under Rule 28.

125 The

judge shall put the parties and their counsels under oath, and they shallremain under oath in all pre-trial conferences.126

6. Failure to present Evidence

Evidence not presented during the pre-trial, except newly-discoveredevidence, shall be deemed waived.127

7. How Conducted

The court shall endeavor to make the parties agree to compromise orsettle in accordance with law at any stage of the proceedings beforerendition of judgment.

128

If there is no full settlement, the judge shall:

1) Adopt the minutes of the preliminary conference as part of the pre-trial proceedings and confirm the markings of exhibits or substitutedphotocopies and admissions on the genuineness and dueexecution of documents;

2) Determine if there are cases arising out of the same facts pendingbefore other courts and order its consolidation, if warranted;

3) Determine if the pleadings are in order and, if not, order theamendments if necessary;

4) Determine if interlocutory issues are involved and resolve thesame;

5) Consider the adding or dropping of parties;6) Scrutinize every single allegation of the complaint, answer and

other pleadings and attachments thereto, and the contents of

124Id.

125Id.

126Id., Sec. 5.

127Id.

128Id., Sec. 10.


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documents and all other evidence identified and pre-marked duringpre-trial in determining further admissions;

7) Obtain admissions based on the affidavits of witnesses andevidence attached to the pleadings or submitted during pre-trial;

8) Define and simplify the factual and legal issues arising from the

pleadings and evidence. Uncontroverted issues and frivolousclaims or defenses should be eliminated;9) Discuss the propriety of rendering a summary judgment or a

judgment based on the pleadings, evidence, and admissions madeduring pre-trial;

10) Observe the Most Important Witness Rule in limiting the number ofwitnesses, determining the facts to be proved by each witness, andfixing the approximate number of hours per witness;

11) Encourage referral of the case to a trial by commissioner underRule 32 of the Rules of Court or to a mediator or arbitrator, underany of the alternative modes of dispute resolution governed by the

Special Rules of Court on Alternative Dispute Resolution;12) Determine the necessity of engaging the services of a qualifiedexpert as a friend of the court (amicus curiae); and

13) Ask parties to agree on the specific trial dates for continuous trial,comply with the one-day examination of witness rule, adhere to thecase flow chart determined by the court, which shall contain thedifferent stages of the proceedings up to the promulgation of thedecision, and use the time frame for each stage in setting the trialdates.

129

8. Effect of Plaintiffs and Defendants Failure to Appear at Pre-TrialDistinguished

The court shall not dismiss the complaint, except upon repeated andunjustified failure of the plaintiff to appear. The dismissal shall be withoutprejudice, and the court may proceed with the counterclaim. If thedefendant fails to appear at the pre-trial, the court shall receive evidenceex parte.

130

9. Minutes

The minutes of each pre-trial conference shall contain matters takenup therein, more particularly admissions of facts and exhibits, and shall besigned by the parties and their counsel.131

129Id., Sec. 6.

130Id., Sec. 7.

131Id., Sec. 8.


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10. Pre-Trial Order

Within ten (10) days after the termination of the pre-trial, the court shallissue a pre-trial order setting forth the actions taken during the pre-trialconference, the facts stipulated, the admissions made, the evidence

marked, the number of witnesses to be presented, and the schedule oftrial. Said order shall bind the parties, limit the trial to matters not disposedof, and control the course of action during the trial.

132

J. Consent Decree

1. Definition

Consent decree refers to a judicially-approved settlement betweenconcerned parties based on public interest and public policy to protect and

preserve the environment.

133

2. Application during Pre-Trial

The judge shall exert best efforts to persuade the parties to arrive at asettlement of the dispute. The judge may issue a consent decreeapproving the agreement between the parties in accordance with law,morals, public order, and public policy to protect the right of the people toa balanced and healthful ecology.

134

K. Trial

1. Continuous Trial

The judge shall conduct continuous trial which shall not exceed two (2)months from the date of the issuance of the pre-trial order. Before theexpiration of the two-month period, the judge may ask the Supreme Courtfor the extension of the trial period for justifiable cause.

135

2. Affidavits in Direct Examination

In lieu of direct examination, affidavits marked during the pre-trial shallbe presented as direct examination of affiants, subject to cross-examination by the adverse party.

136

132Id., Sec. 9.

133Id., Rule 1, Sec. 4 (b).

134Id., Rule 3, Sec. 5; See Chapter on Mediation.

135Id., Rule 4, Sec. 1.

136Id., Sec. 2.

environmental law and procedural rules

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