Republic of the PhilippinesSUPREME COURT

ManilaEN BANC

RESIDENT MARINE MAMMALS OF THE TAON STRAIT PROTECTED SEASCAPE, et al., Petitioners,

- versus - G.R. NO. 180771 FOR: INJUNCTION

Secretary Angelo Reyes, et al., Respondents.

x - - - - - - - - - - - - - - - - - - - - - - - /

Out from nowhere a pod of dolphins came. There were so many of them. A pair of whales about 10 meters long also appeared and flanked me on both sides. While the dolphins alternately nudged my body with their fins to shore, the rest of the pod stayed close, around a meter away, apparently trying to make sure no harm would come to me.

- Ronnie Dabal of Puerto Princesa, Philippines

MEMORANDUM OF LAW

Your Petitioners respectfully submit as their:

PREFATORY

A headline in a Philippine daily

screams: Dolphins save Palawan

fisherman!

The news is about the saga of a tuna

fisherman, Ronnie Dabal from Puerto

Princesa, Philippines who was saved

miraculously by dolphins and whales

after more than ten (10) hours of being

adrift at sea.1

Was it really a miracle? For

centuries of human existence, tales of

dolphins and whales rushing to the rescue

of hapless humans are indeed aplenty.

1 Page 1, Philippine Daily Inquirer, December 17, 2008 issue

Stories of dolphins, whales and porpoises, collectively known as cetacea,

abound in world mythology.2

This popularity may stem from the impressive size of the large whales,

or the playful exertions of the acrobatic dolphins, not to mention the many

stories of cetacea coming to the aid of shipwrecked sailors and stranded

fishermen.3

Several themes commonly appear in ancient mythology from Greece to

the tiny islands of the Pacific, though there is one element present in all: since

time immemorial humans and cetacea have shared a very close and quite

unique bond. Indeed, we have even immortalized the dolphin in the heavens

above us in the stellar constellation delphinus.4

To the dolphin alone nature has given that which the best philosophers

seek: FRIENDSHIP FOR NO ADVANTAGE! Though it has no need of help of any

man, yet it is a genial friend to all and has helped man.5

As aptly written by Oppian6 of Ancient Greece in his poem Halieutica:

Diviner than the Dolphin is nothing yet created, for indeed they were aforetime men and lived in cities along with mortals, butthey exchanged the land for the sea, and put on the form of fishes; but even now, the righteous spirit of men in them preserves human thoughts and human deeds.

This case is all about them. It is all about their protection, preservation

and perpetuation so that stories of Ronnie Dabal may endure for ages.

This is also about some of us ingrate beneficiaries of their kindness -

whose greed and materialism may sink our species to extinction. And when that

time comes, Your Petitioners may be there to try to save the day for us, Your

Honors.

Or, can they?

2 www.people-oceans-dolphins.com3 Id4 Id5 Plutarch, Ibid6 Also known as Oppinos (early third century AD) of Cilicia in south-east Asia Minor, writer of Greek didactic poetry in hexameters. His Halieutica (on fishing) is in five books; the Cynegetica (on hunting), in three books, is also ascribed to him but seems to be the work of a different poet, a native of Syria, though perhaps of the same name. Both poems contain passages of power and beauty, despite the unpromising material. (http://www.answers.com/topic/oppian)

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STATEMENT OF THEIR CASE

This is a suit for certiorari, mandamus and injunction of extreme

urgency to enjoin Public Respondent DOE and Private Respondent Japan

Petroleum Exploration, Ltd. (JAPEX) as well as the latters agents, privies or

assigns from implementing a national government project undertaken though a

Service Contract (Service Contract No. 46) entered into by and between them

and to annul the same for willful and gross violation of the Philippine

Constitution, Philippine Laws and Regulations and Multilateral Environment

Agreements.

The illegal authorizations given by Public Respondents, which are

equivalent to grave abuse of discretion amounting to lack or excess in their

respective jurisdiction, enabled Private Respondent JAPEX to proceed with the

service contract over Your Petitioners habitat, the Taon Strait Protected

Seascape, resulting to their grave and irreparable damage and prejudice.

These illegal acts must be corrected through this instant special civil action as

Petitioners have no plain, adequate, speedy and adequate remedy in the

ordinary course law.

This case also seeks judicial declaration to the effect that service

contracts which were entered into by public respondent Department of Energy

(DOE) pursuant to Presidential Decree No. 87 and involving the exploration,

development and exploitation of our countrys petroleum resources contravene

Sec. 2, Article XII of the 1987 Philippine Constitution.

Your Petitioners adopt and hereby replead, mutatis mutandis, the

statement of the case in the memorandum of the petitioners in Central

Visayas Fisherfolks Development Center [FIDEC], et al v. Angelo Reyes, et

al, G.R. No. 181527 which is consolidated with herein case.

STATEMENT OF FACTS

Your Petitioners adopt and hereby replead, mutatis mutandis, their

statement of facts contained in their initiatory pleading as well as the

admitted factual antecedents in the comment by the Honorable Solicitor

General and the statement of facts in the memorandum of the petitioners in

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Central Visayas Fisherfolks Development Center [FIDEC], et al v. Angelo

Reyes, et al, G.R. No. 181527 which is consolidated with herein case.

They further aver and hereby manifest that sometime in the middle of

the current year, private respondent JAPEX through its privies and assigns

publicly announced its withdrawal from the project. This notwithstanding,

public respondent DOE, through its Regional Director of Region VII proclaimed

that they will still push through with the assailed Service Contract No. 46 and

intends to re-bid it to interested parties.7

ISSUES

I. DO PETITIONERS HAVE LOCUS STANDI?

II. IS SERVICE CONTRACT NO. 46 AND OTHER SIMILAR CONTRACTS

ENTERED INTO BY PUBLIC RESPONDENT DEPARTMENT OF ENERGY

(DOE) AND PRIVATE RESPONDENT JAPEX CONSTITUTIONAL?

III. DID PUBLIC RESPONDENT DEPARTMENT OF ENVIRONMENT AND

NATURAL RESOURCES (DENR) COMMIT GRAVE ABUSE OF

DISCRETION WHERE IT ALLOWED PRIVATE RESPONDENT JAPEX TO

UNDERTAKE OIL EXPLORATION INSIDE THE TAON STRAIT

PROTECTED SEASCAPE ALTHOUGH THE AREA DOES NOT HAVE A

PROTECTED AREA MANAGEMENT PLAN YET?

IV. DID PUBLIC RESPONDENT DENR COMMIT GRAVE ABUSE OF

DISCRETION WHERE IT ISSUED AN ECC TO PRIVATE RESPONDENT

JAPEX WITHOUT REQUIRING THE LATTER TO UNDERGO THE EIA

PROCESS FOR ITS PROJECT?

V. IS THE PHILIPPINE GOVERNMENT LIABLE FOR INTERNATIONAL

DELICT FOR BREACH OF THE GENERALLY-ACCEPTED PRINCIPLES

ENSHRINED IN MULTILATERAL ENVIRONMENTAL AGREEMENTS

WHICH IT IS SIGNATORY?

In addition to the foregoing issues, Your Petitioners adopt and hereby

replead, mutatis mutandis, the issues and the corresponding arguments raised

in the memorandum of the petitioners in Central Visayas Fisherfolks

Development Center [FIDEC], et al v. Angelo Reyes, et al, G.R. No. 181527

which is consolidated with herein case.

DISCUSSION AND ARGUMENT

I7 Cebu Daily News, May 16, 2008 issue

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Petitioners Cetacea Have Sustained And Will Sustain Direct Injury By ReasonOf The Oil Exploration Project

1. Locus standi or legal standing has been defined as a personal and

substantial interest in a case such that the party has sustained or will sustain

direct injury as a result of the governmental act that is being challenged. The

gist of the question on standing is whether a party alleges such personal stake

in the outcome of the controversy as to assure that concrete adverseness which

sharpens the presentation of issues upon which the court depends for

illumination of difficult constitutional questions.8

2. A party who assails the constitutionality of a statute must have a

direct and personal interest. It must show not only that the law or any

governmental act is invalid, but also that it sustained or is in immediate danger

of sustaining some direct injury as a result of its enforcement, and not merely

that it suffers thereby in some indefinite way. It must show that it has been or

is about to be denied some right or privilege to which it is lawfully entitled or

that it is about to be subjected to some burdens or penalties by reason of the

statute or act complained of.9

3. For a concerned party to be allowed to raise a constitutional

question, it must show that (1) it has personally suffered some actual or

threatened injury as a result of the allegedly illegal conduct of the

government, (2) the injury is fairly traceable to the challenged action, and (3)

the injury is likely to be redressed by a favorable action.10

4. By these recitals and those alleged in their initiatory pleading,

petitioner dolphins, whales, porpoises and other cetacean species will

definitely suffer - and have in fact suffered - actual or threatened injury as a

result of constitutionally infirmed oil exploration project within their habitat at

Taon Strait Protected Seascape. They will indubitably be adversely affected

should the assailed acts of respondents continue being unrestrained by the

Honorable Supreme Court.

8 Anak Mindanao Party-List Group v. The Executive Secretary, G.R. No. 166052, August 29, 20079 Ibid10Ibid

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5. It is of judicial notice that there are proven actual or potential

adverse effects to marine mammals if their habitats are disturbed or

destroyed. In the case of Okinawa Dugong (Dugong Dugon), et al. vs.

Secretary of Defense Robert Gates, et al., No. C03-4350 MHP, the United

States District Court of the Northern District of California confirmed that:

It is undisputed that Henoko Bay is dugong habitat and that seagrass beds found in the Bay are dugong feeding grounds. It is also undisputed that dugong have been observed to feed in and traverse Henoko Bay. The record contains considerable disagreement among plaintiffs and defendants experts regarding the extent and degree to which the dugong would be adversely affected. But this does not disturb the undisputed fact that Henoko Bay is dugong habitat and therefore, construction and operation of a military facility in and near the Bay could have potential adverse effects. These potential adverse effects include physical destruction of the Okinawa dugong resulting from contamination of seagrass feeding grounds and collisions with boats and vessels, as well as longterm immune and reproductive damage resulting from exposure to toxins and acoustic pollution.

6. These unpalatable effects on marine mammals caused by

anthropogenic acoustics such as seismic surveys and devises employed in oil

exploration have been scientifically documented, although the impact may vary

from one sub-species to another. In a report to the Marine Mammal Commission

of the United States,11 the Advisory Committee on Acoustic Impacts on Marine

Mammals reveals that:

Marine mammals have evolved over millions of years and rely on sound for vital life functions. Anthropogenic sound in the oceans has increased since the start of the industrial revolution. Increases in background noise levels, as well as the number of individual sound sources, may have adverse effects on marine mammals, the extent and type of which are not well understood. These sound sources include, among others, vessels, sonar operations, seismic surveys, coastal construction, and acoustic harassment devices.

The introduction of anthropogenic sound into the marine environment is a by-product of modern life. There are significant, tangible benefits derived from the protection provided by national defense, the energy supplied by oil and gas exploration, the seismic research carried out to enable prediction of earthquakes and tsunamis, and the transport of goods and materials by commercial shipping. In addition, marine mammals are an important component of marine ecosystems, with esthetic, recreational, and economic significance and value and should be protected. Historically, the balancing among multiple societal interests has been a recurring theme of legislation and national policy formulation that continues to the present.

Recent cetacean strandings coincident with exposure to naval or seismic operations have increased public concern about the effects of anthropogenic sound (Cox et al., 2006). Although no scientific correlation has been established, there is currently sufficient information about four beaked whale stranding events coincident with military mid-frequency sonar use to conclude that they were associated with, and most likely caused by,

11 http://www.mmc.gov/sound/committee/pdf/soundFACAreport.pdf

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exposure to the sonar. These occurred in Greece (1996), the Bahamas (2000), Madeira (2000) and Canary Islands (2002).

7. Comparative studies show that noise from an airgun array in seismic

surveys produces 255 decibels while that coming from devises used in oil

exploration emits between 212-230 decibels (See table below). Natural and human-made source noise comparisons

Buck and Chalfant, 1972; Ross, 1976; Brown, 1982b; Thiele and Odegaard, 1983

Length 340 m; speed 20 knots

190 dBSupertanker

Buck and Chalfant, 1972; Ross, 1976; Brown, 1982b; Thiele and Odegaard, 1983

Length 274 m; speed 23 knots

198 dBContainer ship

Johnston and Cain, 1981; Holiday et al., 1984

Includes vibroseis, sparker, gas sleeve, exploder, water gun and boomer seismic profiling methods

212-230 dBSeismic exploration devices

Hill, 1985; Nishimura, NRL-DC, pers com, 1995

Random events during storm at sea

250 dBLightning strike on water surface

Johnston and Cain, 1981; Barger and Hamblen, 1980; Kramer et al, 1968

Compressed air discharged into piston assembly

255 dBAirgun Array (Seismic)

Deitz and Sheehy, 1954; Kibblewhite, 1965; Northrop, 1974; Shepard and Robson, 1967; Nishimura, NRL-DC, pers. comm., 1995

Massive steam explosions255+ dBSeafloor volcano eruption

Wenz, 1962Magnitude 4.0 on Richter scale (energy integrated over 50Hz bandwidth)

272 dBUndersea earthquake

ReferenceRemarksMaximum source levelNoise source

8. In contradistinction, Section 78 [b] of the Implementing Rules and

Regulations of Presidential Decree No. 984, otherwise known as the Pollution

Decree of 1972 sets following as the maximum allowable noise levels in general

areas of human settlements:

Table I. Environmental Quality Standards for Noise in General Areas:

CATEGORY OF AREA DAYTIME MORNING AND EVENING

NIGHTTIME

AA (For section or contiguous area which requires quietness such as areas within 100 meters from school -sites, nursery schools, hospitals, and special homes for the aged)

50 db 45 db 40 db

A (For section or contiguous area which is primarily used for residential purposes)

55 db 50 db 45 db

B (For section or contiguous area which is primarily a commercial area)

65 db 60 db 55 db

C (For section primarily reserved as a light industrial area)

70 db 65 db 60 db

D (For section which is primarily reserved as a heavy industrial area)

75 db 70 db 65 db

9. Where man can only legally endure noise of up to 75 decibels in his

terrestrial abode, it is well-nigh impossible for marine mammals to withstand

255 decibel of noise within their marine or submarine habitats without being

injured or killed. This is plausible since it is established that sound travels five

(5) times faster underwater than above ground.12 The effect of underwater

12 http://oceanservice.noaa.gov/facts/sound.html

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noise caused by oil exploration to marine mammals is therefore immediate and

fatal.

10. By applying the direct injury test, Your Petitioners-marine mammals

of Taon Strait must have possessed legal standing to sue when they filed this

suit since they have sustained or will sustain direct injury by reason of the

illegal oil exploration project in their habitat.

Granting Legal StandingTo Petitioner Cetacea IsIn Accord With The RhythmAnd Harmony Of Nature

11. Section 16, Article II of the 1987 Philippine Constitution declares as a

state policy the protection and advancement of the right of the people to a

balanced and healthful ecology in accord with the rhythm and harmony of

nature. This provision in our Constitution is the approximation to the so-called

Wild Law13 of Ecuador.

12. The Ecuadorian Constitution in its very recent amendment has

granted, inter alia unto nature the inalienable right "to exist, flourish, and

evolve." It also gave the Ecuadorian government and its citizens the "duty and

right" to file lawsuits for any damage done to their ecosystems and natural

communities.14

13. While most of the world views the Ecuadorian wild law as

revolutionary, one need not stray afar. In as early as 1987, the Philippines had

incorporated the very precepts of wild law to its constitution in what is now

known as Section 16 of Art. II in the Philippine Constitution.

14. In nature, there is rhythm and harmony. There is rhythm in the

season as there is time for preparing the soil, a time for sowing seeds, a time

for tending the plants and a time to harvest the fruits. There is harmony in

nature when all of these elements conspire with each other in order to provide

the tiller good harvest.

15. Nature means the created world in its entirety. Such rhythm and

harmony indispensably include, inter alia, the judicious disposition, utilization,

13 Wild Law is a term coined by Lawyer Cormac Cullinan of South Africa 14 Article 1 of the new "Rights for Nature" chapter of the Ecuador constitution reads: "Nature or Pachamama, where life is reproduced and exists, has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution. Every person, people, community or nationality, will be able to demand the recognitions of rights for nature before the public bodies."

8

management, renewal and conservation of the country's forest, mineral, land,

waters, fisheries, wildlife, off-shore areas and other natural resources to the

end that their exploration, development and utilization be equitably accessible

to the present as well as future generations.15

16. There is also rhythm in our ecosystem16. Except probably for modern

man, each species functions according to the purpose of its existence.

17. In our marine ecosystem for instance, mangroves serve among others

as nursery and refuge to fish and other marine life as well as feed nutrients to

coral reefs. On the other hand, seagrasses are good source of food to them,

especially to the manatees while at the same time taking up dissolved nutrients

and trapped sediments in order to produce water clarity. Coral reefs, which

function as marine forests provide protection and shelter for many different

species of fish and other marine habitus. Without coral reefs, these fish and

other marine life will be left homeless and nowhere to have their babies

weaned.

18. The importance of marine mammals to our ecosystem cannot be

overemphasized. It is beyond pecuniary estimation. Their value to our

ecosystem is acknowledged by the Marine Mammals Act of the United States

where it ordains in its Section (2) that:

(1) Certain species and population stocks of marine mammals are, or may be, in danger of extinction or depletion as a result of mans activities;

(2) Such species and population stocks should not be permitted to diminish beyond the point at which they cease to be significant functioning element in the ecosystem of which they are a part, and consistent with this major objective, they should not be permitted to diminish below their optimum sustainable population. Further measures should be immediately taken to replenish any species or population stock which has already diminished below that population. In particular, efforts should be made to protect essential habitats, including the rookeries, mating

15 Minors Oposa, et al. v. Factoran, et al., G.R. No. 101083 July 30, 199316An ecosystem is a natural unit consisting of all plants, animals and micro-organisms (biotic factors) in an area functioning together with all of the non-living physical (abiotic) factors of the environment. The term ecosystem was coined in 1930 by Roy Clapham to denote the combined physical and biological components of an environment. British ecologist Arthur Tansley later refined the term, describing it as "The whole system, including not only the organism-complex, but also the whole complex of physical factors forming what we call the environment". Tansley regarded ecosystems not simply as natural units, but as "mental isolates". Tansley later defined the spatial extent of ecosystems using the term "ecotope". Central to the ecosystem concept is the idea that living organisms interact with every other element in their local environment. Eugene Odum, a founder of ecology, stated: "Any unit that includes all of the organisms (ie: the "community") in a given area interacting with the physical environment so that a flow of energy leads to clearly defined trophic structure, biotic diversity, and material cycles (ie: exchange of materials between living and nonliving parts) within the system is an ecosystem. The human ecosystem concept is then grounded in the deconstruction of the human/nature dichotomy and the premise that all species are ecologically integrated with each other, as well as with the abiotic constituents of their biotope. (http://en.wikipedia.org/wiki/Ecosystem)

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grounds, and areas of similar significance for each species of marine mammal from the adverse effect of mans actions;

x x x x(6) Marine mammals have proven themselves to be resources of great

international significance, aesthetics and recreational as well as economic, and it is the sense of the Congress that they should be protected and encouraged to develop to the greatest extent feasible commensurate with sound policies of resource management and that the primary objective of their management should be to maintain the health and stability of marine ecosystem. Whenever consistent with this primary objective, it should be the goal to obtain an optimum sustainable population keeping in mind the carrying capacity of the habitat.

19. Biodiversity is essential to the functioning of the ecosystems. Each

species plays a unique role within an ecosystem and every species is dependent

on others for food, shelter, or other resources. The loss of a single species like

Your Petitioners can have profound effects to the ecosystem and to the

environment as a whole.

20. According to Dr. Lemnuel V. Aragones of the University of the

Philippines, a marine scientist who for more than a decade have been

conducting studies of marine mammals in Taon Strait, dolphins and their

cetacean relatives play a very important role to the marine ecosystem at the

narrow strait.

21. He said that being the top predators, they maintain the best gene-

pool of the fish stocks, particularly those that we humans consume. The best of

the stocks are those healthy populations that are left to propagate instead of

those possibly sick stocks whose disease may be transferred to humans who

consume them. Dr. Aragones further explained that the first that dolphins

consume would usually be the fish that are weak and maybe sick as they would

be easier to catch.

22. In unraveling the seeming mysterious attitude of dolphins as saviors

of helpless humans at sea, Dr. Aragones pointed out that this in effect is a

manifestation of their selflessness or exhibition of 'altruism' - a very high level

of behavior, most likely representing a very high level of intelligence as

reflected by their highly social structure.

23. Petitioners cetacea should be given legal standing in suits involving

their protection, preservation and perpetuation. Their decimation or extinction

would undoubtedly disturb the symbiosis of nature and cause imbalance to the

ecology. As such, the right of the Filipino people to a balanced ecology that is

in accord with the rhythm and harmony of nature would be thereby violated.

10

Legal Standing Is PureDiscretion On The PartOf the Honorable Court

24. The question on locus standi is always discretionary. Being just a

procedural technicality, it may be waived by the Court in the exercise of its

discretion. This is the principle laid down in Prof. Randolf S. David, et al. v.

Gloria Macapagal-Arroyo17 where it was held:

It must always be borne in mind that the question of locus standi is but corollary to the bigger question of proper exercise of judicial power. This is the underlying legal tenet of the "liberality doctrine" on legal standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a judicial question which is of paramount importance to the Filipino people. To paraphrase Justice Laurel, the whole of Philippine society now waits with bated breath the ruling of this Court on this very critical matter. The petitions thus call for the application of the "transcendental importance" doctrine, a relaxation of the standing requirements for the petitioners in the "PP 1017 cases."

25. Environmental suits should even enjoy a much higher level of

liberality on legal standing since what usually at stake in environmental

litigations are the very elements on earth that lend synergy to this thing called

life. After all, the right of nature to exist and flourish and the natural order of

things even precede humankind and governments.18 They therefore should be

immune from whatever procedural niceties and gauntlets invented by man.

26. For quite a long time, we were made to believe on the conventional

thinking that all laws were established for men's sake.19 If lessons are not

learned, this paradigm has led us to the abject state that we are now in

climate change, mountains of garbage, incurable diseases and sea level rise,

just to name a few.

27. In its landmark environmental jurisprudence in Metro Manila

Development Authority, et al. v. Concerned Residents of Cavite20, this

Honorable Court is emphatic in recognizing the need to address environmental

degradation with utmost dispatch:

The need to address environmental pollution, as a cause of climate change, has of late gained the attention of the international community. Media have finally trained their sights on the ill effects of pollution, the destruction of forests and other critical habitats, oil spills, and the unabated improper disposal of garbage. And rightly so, for the magnitude of environmental destruction is now on a scale few ever foresaw and the wound no longer simply heals by itself. But amidst hard

17 G.R. No. 171396, May 3, 200618 Paraphrasing Oposa, Ibid19 Legal Theory on hominum causa omne jus constitutum posited by Roman jurist Hermogenianus in the 3rd or 4th century AD20 G.R. No. 171947, Dec. 18, 2008

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evidence and clear signs of a climate crisis that need bold action, the voice of cynicism, naysayers, and procrastinators can still be heard.

28. Depriving legal standing to the dolphins and other ceteacean species to whom are scientifically proven to be gifted with intelligence and cognition

may be difficult to divine where the same rules allow a ship, a corporation, or

even an estate to sue. This argument is the gist of the passionate dissent by

Justice William Douglas before an almost equally divided U.S. Supreme Court in

the famous case of Sierra Club v. Rogers C.B. Morton, et al.21 where he

argued that: Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. The corporation sole a creature of ecclesiastical law - is an acceptable adversary and large fortunes ride on its cases. The ordinary corporation is a person for purposes of the adjudicatory processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes.

Mineral King is doubtless like other wonders of the Sierra Nevada such as Tuolumne Meadows and the John Muir Trail. Those who hike it, fish it, hunt it, camp in it, frequent it, or visit it merely to sit in solitude and wonderment are legitimate spokesmen for it, whether they may be few or many. Those who have that intimate relation with the inanimate object about to be injured, polluted, or otherwise despoiled are its legitimate spokesmen.

The Solicitor General, whose views on this subject are in the Appendix to this opinion, takes a wholly different approach. He considers the problem in terms of government by the Judiciary. With all respect, the problem is to make certain that the inanimate objects, which are the very core of Americas beauty, have spokesmen before they are destroyed. It is of course, true that most of them are under the control of a federal or state agency. The standards given those agencies are usually expressed in terms of the public interest. Yet public interest has so many differing shades of meaning as to be quite meaningless on the environmental front. Congress accordingly has adopted ecological standards in the National Environmental Policy Act of 1969, Pub.L. 91-90,83 Stat. 852, 42 U.S.C. 4321 et seq., and guidelines for agency action have been provided by the Council on Environmental Quality of which Russell E. Train is Chairman.

Yet the pressures on agencies for favorable action one way or the other are enormous. The suggestion that Congress can stop action which is undesirable is true in theory; yet even Congress is too remote to give meaningful direction and its machinery is too ponderous to use very often. The federal agencies of which I speak are not venal or corrupt. But they are notoriously under the control of powerful interests who manipulate them through advisory committees, or friendly working relations, or who have that natural affinity with the agency which in time develops between the regulator and the regulated.

As early as 1894, Attorney General Olney predicted that regulatory agencies might become industry- minded, as illustrated by his forecast concerning the Interstate Commerce Commission:

The Commission ..... is, or can be made, of great use to the railroads. It satisfies the popular clamor for a government supervision of railroads, at the same time that that supervision is almost entirely nominal. Further, the older such a

21 92 S.Ct. 1361 (1972) (USA)

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commission gets to be, the more inclined it will be found to take the business and railroad view of things. M. Josephson, The Politicos 525 (1938).

The voice of the inanimate object, therefore, should not be stilled. That does not mean that the judiciary takes over the managerial functions from the federal agency. It merely means that before these priceless bits of Americana (such as a valley, an alpine meadow, a river, or a lake) are forever lost or are so transformed as to be reduced to the eventual rubble of our urban environment, the voice of the existing beneficiaries of these environmental wonders should be heard.

Perhaps they will not win. Perhaps the bulldozers of progress will plow under all the aesthetic wonders of this beautiful land. That is not the present question. The sole question is, who has standing to be heard?

29. Yes, perhaps in this

case the dolphins and the whales

may not win at all. Perhaps, the

oil rigs of progress may

ultimately plow under and

continuously drill at 230 decibels

beneath their habitat at Taon

Strait eventually killing or

maiming them like what had

befallen on one of their kind in

the picture shown at right.

30. Their wails to be

heard before this last bastion of justice should not be stilled by any procedural

gobbledygook in which they did not even take part of when crafted by their

homo sapiens friends.

31. As in Sierra Club, the inevitable question must be this: can they sue

those who are wont in destroying their home? If the current global sentiment is

to be the gauge, the answer should be a resounding yes!

Dolphins and Cetacea are Third Party Beneficiaries In The Bonn Convention on Conservation Of Migratory Species and Wild Animals Which the Philippines Is a Signatory

32. Beginning February 23, 2006, Petitioners Cetacea are now both listed

under the category of Mammalia in Appendix I and Appendix II of the Bonn

Convention for the Conservation of Migratory Species.22

22 http://www.cms.int/about/index.htm (website of UNEP and CMS of the United Nations)

13

33. Those listed under Appendix I are migratory species that are

endangered to be extinct while those listed under Appendix II are migratory

species which have an unfavorable conservation status and which require

international agreements for their conservation and management, as well as

those which have a conservation status which would significantly benefit from

the international cooperation that could be achieved by an international

agreement.23

34. The Philippine Government as one of the parties to the aforesaid

convention has acknowledged the importance of migratory species being

conserved and agreed to take action to this end whenever possible and

appropriate, paying special attention to migratory species the conservation

status of which is unfavorable, and taking individually or in co-operation

appropriate and necessary steps to conserve such species and their habitat.24

35. Such a commitment by the Philippine Government to them is in the

nature of a stipulation pour autrui. In contract law, a stipulation pour autrui is

a stipulation in favor of a third person (in this case, a party or a species)

conferring a clear and deliberate favor upon him (or it), which stipulation is

found in a contract entered into by parties neither of whom acted as agent of

the beneficiary.25

36. Being third party beneficiaries thereof, Your Petitioners may validly

demand from the Philippine Government, through their representatives or

stewards, the performance of its treaty obligation and commitment by way

enjoining its state organs from doing acts or projects which may otherwise

injure them or threaten their existence.

37. This posture of Your Petitioners is consistent with the rule laid in

down in the early case of Uy Tam and U Yet v. Thomas Leonard, et al26,

where it was held that:

Should the contract contain any stipulation in favor of a third person, he may demand its fulfillment, provided he has given notice of his acceptance to the persons bound before it may have been revoked.

23 Arts. III & IV, Convention for Conservation of Migratory Species (CMS)24 Fundamental Principle No. 1, Art. II, Ibid25 Marmont Resot Hotel Enterprises v. Federico Guiang, et al., G.R. No. 79734, December 8, 1988 26 G.R. No. L-8312, March 29, 1915

14

38. A lot of formal and public demands had been made to respondents

for them to forego the violative oil exploration project inside Your Petitioners

habitat in Taon Strait Protected Seascape. But they all fell on deaf ears.

Moreover, the requirement on the notice of Your Petitioners acceptance to

the benefits under the Convention is met by their use and choice of Taon

Strait as their natural habitat.

39. The legal standing of Your Petitioners representatives, Professors

Gloria Ramos and Liza Osorio of the University of Cebu College of Law is

however a non-issue. They definitely have stakes in the suit as they are in the

forefront of building awareness to protect the Taon Strait Protected Seascape

in order to conserve its splendor and marine wealth. Together with other

environmental advocates young and old, they formed the Save Taon Strait

Citizens Movement to advance the rights of Your Petitioners, the other marine

lives in the area and the fisherfolks who rely on the marine resources of the

strait for their subsistence.

40. The Honorable Supreme Court may please take judicial notice that it

is this citizens network to which Professors Ramos and Osorio belong that is

presently actively advancing the conservation and protection of the Taon

Strait. They are doing their advocacy by way of capacitating the stakeholders

and at the same time objecting to the unwarranted oil exploration thereat.

This same citizens network of theirs is also active in campaigning against the

on-going oil exploration project within the municipal waters of Sibonga and

Argao, Cebu by NorAsia Ltd. of Australia pursuant to Service Contract No. 56

which the latter signed with public respondent DOE.

41. Professors Ramos and Osorio are truly Your Petitioners rightful

stewards and of other Gods creations as all of us ought to be, especially where

the primary steward which is the Philippine State abjectly failed in its duty

pursuant to the public trust doctrine.

42. Under this doctrine, certain resources like air, sea, waters and the

forests have such a great importance to the people as a whole that it would be

wholly unjustified to make them a subject of private ownership. The said

resources being a gift of nature, they should be made freely available to

everyone irrespective of the status in life.27

27 Vide M.C. Mehta v. Kamal Nath & Others (1977) 1 SCC 388 (India)

15

43. The public trust doctrine enjoins upon the Government to protect

the resources of the enjoyment of the general public rather than to permit

their use for private ownership or commercial purposes. As held by the Highest

Court of India in M.C. Mehta v. Kamal Nath & Others 28, and to quote:

The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership. Thus the Public Trust doctrine is a part of the law of the land.

x x x x - x In the present case, large area of the bank of River Beas which is part of protected forest has been given on a lease purely for commercial purposes to the Motels. The area being ecologically fragile and full of scenic beauty should not have been permitted to be converted into private ownership and for commercial gains. Therefore, the Himachal Pradesh Government committed patent breach of public trust by leasing the ecologically fragile land to the Motel management. The lease transactions are in patent breach of the trust held by the State Government.

44. Being the more intelligent species (and this is according to man

himself, although the claim may not probably be accorded weight in evidence

for being self-serving), man occupies a unique position as a steward to all of

earths creations.

45. A stewards juridical bond with his ward is always fiduciary. He is

required to act ubberime fide since as a steward he is expected to do and act

only to the best interest of his ward. But man utterly failed in this self-

appointment. As the late Pope John Paul II poignantly laments in his treatise

God Made Man the Steward of Creation:

Man is no longer the Creator's steward, but an autonomous despot, who is finally beginning to understand that he must stop at the edge of the abyss. Another welcome sign is the growing attention being paid to the quality of life and to ecology, especially in more developed societies, where people's expectations are no longer concentrated so much on problems of survival as on the search for an overall improvement of living conditions" (Evangelium vitae, n. 27). At stake, then, is not only a physical ecology that is concerned to safeguard the habitat of the various living beings, but also a human ecology which makes the existence of creatures more dignified, by protecting the fundamental good of life in all its manifestations and by preparing for future generations an environment more in conformity with the Creator's plan.

46. The time for the dolphins, whales, porpoises and other cetacean

species to be conferred upon with legal standing has surely come. Roger

Langton29 in addressing this issue on legal standing of the other species

presents the following intriguing perspective, quote:

28 (1977) 1 SCC 388 (India)29 Langton, R. 1993. On the moral status of humans. Aquatic Survival 2(3):4, quoted in The Rights of Species and Ecosystems by E.P. Pister, Fisheries, April 1995 Vol. 20, No. 4

16

Humans, of course, have little difficulty granting rights to themselves and, with typical anthropocentric arrogance, tell each other that only those species with that come closest to having human characteristics are worthy of rights. I would like to suggest a different approach to evaluating plant and animal rights: those species that contribute most to the health of the earth and its biodiversity are most worthy of rights. After all, if these creatures are not protected, the whole system is threatened. Using this criterion, the case might be made that Homo sapiens would be very low on the list of those eligible to be granted rights. It could even be argued that the extinction of humans might be the one occurrence that would contribute most to the earths viability I, for one, will champion the rights of fungus! On the other hand, if humans were to emphasize that show respect for all life and develop the capacity to learn values that result in a healthy environment, they just might be worthy of a few rights also.

47. It is to this Honorable Courts credit that the trailblazing

jurisprudence in Oposa where it granted petitioning minors to sue for

themselves and on behalf of generations yet unborn the legal standing before

it30 had been prominently cited in a Bangladesh case of M. Farooque v.

Bangladesh31, where its Supreme Court ratiocinated that:

We have given reasons of our own why the appellant is a person aggrieved, but we have to say specifically that we do not accept Dr. Farooques submission that the association represents not only the present generation but also the generation yet unborn. This claim is based on a case of Philippines Supreme Court, Juan Antonio Oposa and others vs. Honourable Fulgencio S. Factoran and another in which the twin concepts of inter-generational responsibility and inter-generational justice were agitated by the plaintiff minors represented by their respective parents to prevent the misappropriation or impairment of Philippine rain forest. The minors asserted that they represent their generation as well as generation yet unborn. The minors locus standi was allowed because the right to a balanced and heartful ecology was a fundamental right and several laws declaring the policy of the State to conservation of the countrys forest not only for the present generation by for the future generation as well were guaranteed. (The South Asian Environmental Law Reporter, Vol.13, September, 1994, Colombo, Sri Lanka, pp. 113-145).

48. If this Honorable Supreme Court did vest legal standing unto the

minors in Oposa, there seems to be no plausible reason why it may not give the

same treatment to Your Petitioners. Such a novel rule of law if laid down,

although it may seem radical to some straightjacket advocates in law, would be

contemporaneous to this era of thinking where environmental protection

occupies a very high level in the public soul. After all, the law as a means of

social control is not static but rather dynamic as to attune itself to the

changing needs of the times.32

30 Oposa v. Factoran, G.R. No. 101083, July 30, 199331 Civil appeal No 24 of 1995, 17 BLD (AD) 1997,Vol. XVII, pg 1 to 33; 1 BLC (AD) (1996), pg 189 219, 1996 (Bangladesh)32 Vide Javellana v. Executive Secretary, G.R. No. L-36142, Mar. 31, 1973

17

49. The present problems arrayed against mankind are gargantuan,

gravely threatening his very existence on this planet. These maladies of

anthropogenic origin running amuck since the advent of industrial age cannot

be solved by the same formula that created them in the first place.

50. What is therefore demanded of us right now is to think outside of the

box and shift paradigm in order to get a clearer glimpse at the immensity of

the challenge ahead of us. To arrest the seemingly irreversible effects of global

warming, climate change and massive environmental degradation which are all

caused by mans mindless development, apathy to nature and low regard to

other co-existing species is without debate a very tall order. Yet science tells

us that it can be done but quickly!

51. We have accordingly remaining a period of barely five to ten years to

do and act sanely. After this, whatever course of action we will thereafter take

may only be palliative much less ineffectual as they might already be too late.

And when this apocalypse would happen, what then is the utility to our man-

centered institutions, our professions, our rules of procedures, and our

material wealth where all of us will be preoccupied in fighting for our

individual survival on this planet?

52. Having said all these, whatever doubt about Your Petitioners having

locus standi must have been put to rest more so if the following dissertation

showing paramount and transcendental importance of the issues involved is

judiciously weighed.

II

Service Contract No. 46And Other Similar ContractsEntered Into By DOE Are Inconsistent With Sec. 2,Art. XII of the 1987 PhilippineConstitution

53. The 2nd Sentence of Sec. 2, Art. XII mandates: The exploration,

development, and utilization of natural resources shall be under the full

control and supervision of the State. The State may directly undertake such

activities, or it may enter into co-production, joint venture, or production-

sharing agreements with Filipino citizens, or corporations or associations at

least sixty per centum of whose capital is owned by such citizens.

54. For large scale exploration, development, utilization of natural

resources as in this case and where the proponent is a foreign-owned entity

18

like that of private respondent JAPEX, the applicable rule is paragraph (5) in

the same Constitutional provision where it states: The President may enter

into agreements with foreign-owned corporations involving either technical or

financial assistance for large-scale exploration, development, and utilization

of minerals, petroleum, and other mineral oils according to the general terms

and conditions provided by law, based on real contributions to the economic

growth and general welfare of the country. In such agreements, the State

shall promote the development and use of local scientific and technical

resources.

55. In her comment, the Honorable Solicitor General cited the

annotation of Dean Joaquin G. Bernas, S.J. in his book The 1987 Constitution

of the Republic of the Philippines: A commentary, and arrived at the following

erroneous contention: The adoption of the above provision on service

contracts is recognition that local technical and financial resources in the area

of large-scale exploration, development and utilization of minerals,

petroleum, and other mineral oils are inadequate.

56. By conveniently referring service contracts entered into by public

respondent DOE which are of the 1973 variety as valid substitutes to the

constitutional nomenclature of agreements x x x- x involving either

technical or financial assistance, the Honorable Solicitor General is unwittingly

advancing a dangerous thesis that generally the two terms are interchangeable.

But are they? The answer however is in both yes and no.

57. Revisiting La Bugal-Blaan Tribal Association, et al. v. Victor O.

Ramos, et al.,33 the following ratio by its ponente is instructive for the

judicious determination of the issue at hand:

From the foregoing, we are impelled to conclude that the phrase agreements involving either technical or financial assistance, referred to in paragraph 4, are in fact service contracts. But unlike those of the 1973 variety, the new ones are between foreign corporations acting as contractors on the one hand; and on the other, the government as principal or owner of the works. In the new service contracts, the foreign contractors provide capital, technology and technical know-how, and managerial expertise in the creation and operation of large-scale mining/extractive enterprises; and the government, through its agencies (DENR, MGB), actively exercises control and supervision over the entire operation.

Such service contracts may be entered into only with respect to minerals, petroleum and other mineral oils. The grant thereof is subject to several safeguards, among which are these requirements:

33 G.R. No. 127882. December 1, 2004

19

(1) The service contract shall be crafted in accordance with a general law that will set standard or uniform terms, conditions and requirements, presumably to attain certain uniformity in provisions and avoid the possible insertion of terms disadvantageous to the country.

(2) The President shall be the signatory for the government because, supposedly before an agreement is presented to the President for signature, it will have been vetted several times over at different levels to ensure that it conforms to law and can withstand public scrutiny.

(3) Within thirty days of the executed agreement, the President shall report it to Congress to give that branch of government an opportunity to look over the agreement and interpose timely objections, if any.

58. The service contracts being referred to in La Bugal which are

declared to be in conformity with the Constitution are those so-called new

ones which were or to be negotiated by the DENR but executed or to be

executed by the President pursuant to the Republic Act 7942 or the Philippine

Mining Act of 1995, the latter being the general law alluded to as having set

the standards or uniform terms and conditions to be followed by the Executive

Department in their course of issuing mining tenements.

59. By express declaration in La Bugal, those service contracts that were

of the 1973 variety and executed pursuant to Presidential Decree No. 87 (The

Oil Exploration and Development Act of 1972) such as Service Contract No. 46

and other similar contracts entered into by public respondent DOE are

expressly excluded. For reference in the succeeding disquisition, a machine

copy of Service Contract No. 46 is attached as Annex A for this Memorandum.

Your Petitioners were not able to procure a certified true copy of the

document as it is accordingly confidential in nature. This claim shall be

tackled elsewhere in the subsequent discussions.

60. Meanwhile, La Bugal is right all along in finding that the 1973 variety

of service contracts is anathema to the 1987 Constitution in view of the reasons

given in the succeeding.

61. Firstly, Section 6 of P.D. 87 on the nature of service contract

provides that in Service Contract, service and technology are furnished by

the service contractor for which it shall be entitled to the stipulated

service fee while financing is provided by the GOVERNMENT to which all

petroleum produced shall belong.

62. In fact, in the amendatory Presidential Decree 1857, the Government

categorically commits in Sec. 2 thereof as amendment to Sec. 8 of P.D. 87 to

20

reimburse the CONTRACTOR for all operating expenses not exceeding

seventy percent (70%) of the gross proceeds from production in any year,

Provided, that if in any year, the operating expenses exceed seventy

percent (70%) of gross proceeds from production, then the un-recovered

expenses shall be recovered from the operations of succeeding years.

63. The preceding scheme is not at all sanctioned under R.A. 7942 since

in the latter statute it is the foreign contractors who are thereby required to

provide for the capital, technology and technical know-how, and managerial

expertise in the creation and operation of large-scale mining/extractive

enterprises. Meanwhile, the role of the Government is only to actively exercise

control and supervision over the entire operation through the DENR/MGB over

these mining tenements.

64. Secondly, unlike in Section 36 of R.A. 7942 which makes it

mandatory in every financial or technical assistance agreement to be notified

to Congress by the President herself within thirty (30) days from execution and

approval, there is nowhere provided in P.D. 87 as well as stipulated in Service

Contract No. 46 for the President to report or notify Congress about every

contract entered into by her through public respondent DOE. The absence of

this very important safeguard condition makes the subject contract and P.D. 87

ran afoul with the Constitution.

65. Thirdly, unlike in the same section of R.A. 7942 where it is required

that all FTAAs, which were negotiated by DENR must be executed and approved

by the President, in the assailed Service Contract No. 46 it is the Secretary of

public respondent DOE who signed the document. This is again a clear violation

of the Constitution and inconsistent with the ruling in La Bugal where it is only

the President, and no one else who is authorized to enter into agreements with

foreign-owned corporation involving technical or financial assistance or service

contracts for large-scale exploration, development, and utilization of

petroleum and other mineral oils, among others.

66. Lastly, there are provisions in Service Contract No. 46 that are

patently infirmed since they are either ultra vires, grossly disadvantageous to

the Government or otherwise ambiguous. Among them are:

a. Section VII (7.2) (c) of the Service Contract where public respondent

DOE exempted private respondent JAPEX from complying with Sec. 7

of Republic Act 5455 on publication and posting requirements to

21

foreign entities wanting to do business in the Philippines. This

stipulated commitment is ultra vires since DOE is without any such

express power and authority granted it in its charter, the Republic

Act No. 7638 or by the mentioned law itself;

b. The parameters set in Sec. (10.1) of the subject contract relative to

determining the Market Price of petroleum produced in order to

compute the gross proceeds of the sale which are obviously

ambiguous. Specifically, the term transaction between independent

persons dealing at arms length in a free market is highly

susceptible to varied interpretations that may be detrimental or

disadvantageous to the Government;

c. The sweeping coverage under the provision on confidentiality found

in Section XXIII of the subject contract where all documents,

information, data and reports related to the Petroleum Operations

within the Contract Area are treated as confidential in nature is

clearly contrary to the States policy of full public disclosure of all

government transactions involving public interest as embodied in

Section 28, Art. II of the Constitution. This confidentiality clause in

the subject service contract is also inconsistent with the declared

state policy in requiring petroleum industry to be carried out in a

manner consistent with public interest34; and

d. The assumption by public respondent DOE of the contractors

obligation to pay all Philippine Income Tax on the latters behalf

found in Section VII (7.3) of the subject contract is gross usurpation

of the power and authority of the Department of Finance through the

latters Bureau of Internal revenue.

67. With these intrinsic vices, it should become effortless on the part of

the Honorable Supreme Court to declare Service Contract No. 46 as being

invalid, ultra vires and unconstitutional. And ditto with all other similar

contracts entered into by public respondent DOE pursuant to Presidential

Decree No. 87 as amended.

III

Allowing Oil Exploration Inside Taon Strait Is Illegal In the Absence ofA Protected Area Management Plan

34 Paraphrasing Sec. 3, R.A. 6173, otherwise known as the Oil Industry Commission Act

22

68. The area subject matter in this controversy is the Taon Strait, a

narrow but deep body of water separating the Islands of Cebu and Negros in

the Philippines. Because of its rich marine biodiversity and biologically unique

features capable of sustaining human life and development as well as marine

life, the area was duly declared a protected seascape on May 27, 1998 by

President Fidel V. Ramos pursuant to Presidential Proclamation 1234.

69. The action by the

former President is consistent

with Sec. 5 (e) of Republic

Act 7586, otherwise known as

the National Integrated

Protected Areas Systems Act

of 1992 which provides that:

Upon receipt of the

recommendation of the

DENR, the President shall

issue a presidential

proclamation designating the

recommended areas as

protected areas and providing for measures for their protection until such

time when Congress shall have enacted a law finally declaring such

recommended areas as part of the integrated protected area systems.

70. A National Integrated Protected Areas Systems (NIPAS) is the

classification and administration of all designated protected areas to maintain

essential ecological processes and life-support systems, to preserve genetic

diversity, to ensure sustainable use of resources found therein, and to maintain

their natural conditions to the greatest extent possible.35

71. On the other hand, a protected area refers to identified portions of

land and water set aside by reason of their unique physical and biological

significance, managed to enhance biological diversity and protected against

destructive human exploitation.36

72. A protected area may be a strict nature reserve, a natural park, a

natural monument, a wildlife sanctuary, a protected landscape or seascape, a

35 Sec. 4 (a) Republic Act 7586 (The NIPAS Act)36 Sec. 4 (b) Ibid

23

resource reserve, a natural biotic area or other category established by law,

conventions or international agreements which the Philippines is a signatory.37

73. A protected seascape (or landscape), meanwhile, are areas of

national significance which are characterized by the harmonious interaction of

man and land while providing opportunities for public enjoyment through

recreation and tourism within the normal lifestyle and economic activity of

these areas.38 Such is the innate features of Taon Strait as to be appropriately

declared a protected seascape.

74. As a protected seascape, the principal instrument which ought to

govern human intrusions or activities inside Taon Strait like seismic surveys

and oil explorations or exploitations is the statutorily required Protected Area

Management Plan and not an Environmental Compliance Certificate (ECC). This

is clear in Section (9) of the NIPAS Act where it is mandated:

Section 9. Management Plans. There shall be a general management planning strategy to serve as guide in formulating individual plans for each protected area. The management planning strategy shall, at the minimum, promote the adoption and implementation of innovative management techniques including, if necessary, the concept of zoning, buffer zone management for multiple use and protection, habitat conservation and rehabilitation, diversity management, community organizing, socioeconomic and scientific researches, site-specific policy development, pest management, and fire control. The management planning strategy shall also provide guidelines for the protection of indigenous cultural communities, other tenured migrant communities and sites and for close coordination between and among local agencies of the Government as well as private sector.

Each component area of the System shall be planned and administered to further protect and enhance the permanent preservation of its natural conditions. A management manual shall be formulated and developed which must contain the following: an individual management plan prepared by three (3) experts, basic background information, field inventory of the resources within the area, an assessment of assets and limitations, regional interrelationships, particular objectives for managing the area, appropriate division of the area into management zones, a review of the boundaries of the area, and a design of the management programs.

75. In the NIPAS Law, an Environmental Compliance Certificate is

applicable or required only to be issued (though only after a thorough conduct

of an Environmental Impact Assessment) where the human activity or project is

outside the scope of the protected area, such as the buffer zone. This thesis

finds support in Section 12 of the NIPAS Act where it is provided:

Section 12. Environmental Impact Assessment. - Proposals for activities WHICH ARE OUTSIDE THE SCOPE OF THE MANAGEMENT PLAN for protected areas shall be subject to an environmental impact assessment as required by law before they are adopted, and the results thereof shall be taken into consideration in

37 Sec. 3, Ibid38 Sec. 4 (i), Ibid

24

the decision-making process. No actual implementation of such activities shall be allowed without the required Environmental Compliance Certificate (ECC) under the Philippine Environment Impact Assessment (EIA) system. In instances where such activities are allowed to be undertaken, the proponent shall plan and carry them out in such manner as will minimize any adverse effects and take preventive and remedial action when appropriate. The proponent shall be liable for any damage due to lack of caution or indiscretion. [Underscoring supplied]

76. Under the rules of statutory construction, the mention of one thing

implies the exclusion of another thing that is not mentioned. Thus, if a Law

enumerates the things upon which it is to operate, everything else must

necessarily, and by implication, be excluded from its operation and effect.39

77. As expressly provided in the NIPAS Law, only those activities outlined

in the management plan will be permitted inside a protected area. Those that

are not are thereby required to procure an ECC following a truly EIA process.

However as a sine qua non, there must be formulated a management plan for a

particular protected area. Otherwise, there is no way for the proper agency to

exactly determine which activity is part or outside of the scope of the

management plan.

78. To carry out its legislative purpose, Congress sets out under Section

(10) in the same law the creation of a Protected Areas and Wildlife Division

(PAWD) which is attached to public respondent DENR in order to

conscientiously administer and manage the systems, thus:

Section 10. Administration and Management of the System. The National Integrated Protected Area System is hereby placed under the control and administration of the DENR. For this purpose, there is hereby created a division in the regional offices of the Department to be called the Protected Areas and Wildlife Division in regions where protected areas have been established, which shall be under the supervision of a Regional Technical Director x x x - The Service thus established shall manage protected areas and promote the permanent preservation, to the greatest extent possible of their natural conditions.

79. Proceeding from the foregoing thesis, the Environmental Compliance

Certificate (ECC) that was issued to private respondent JAPEX by the

Environment Management Bureau (EMB) should be considered as invalid and a

farce since the latter agency has no jurisdiction over the Taon Strait

Protected Seascape. Apropos, it is the Protected Areas and Wildlife Division of

public respondent DENR that exercises jurisdiction over the protected area

where the subject oil exploration is sited.

39 Crawford, Statutory Construction, pp. 334-335, quoted in Sario Mainias v. COMELEC, G.R. No. 146943, Oct. 4, 2002

25

80. This must be the only plausible ratio legis in establishing the NIPAS

Act, view that:

a. Congress created a special division in all regional offices known as the

Protected Areas and Wildlife Division (PAWD) under the supervision of a

specific Regional Technical Director.40 If the Law intended it to be part

of the Environmental Management Bureau (EMB), it would have

subsumed the PAWD under the EMB, instead of creating a particular

division within the DENR Regional Office;

b. The Environmental Impact Assessment (EIA) Law (Pres. Dec. 1586) is

implemented on the ground by the EMB while the NIPAS Law by the

Protected Areas and Wildlife Division (PAWD);

c. The process followed under the EIA Law is known as the Environmental

Impact System (EIS), the output of which is the ECC. Meanwhile the

process observed in the NIPAS Law is three-tiered, to wit: 1st The

Protected Area Management Planning Strategy (Sec. 9, RA 7586); 2nd a

Protected Area Management Plan for the individual protected area like

the Taon Strait (Sec. 10); and 3rd - a Protected Area Implementation

Manual;

d. The resulting document under the EIA System is the so-called

Environmental Compliance Certificate (ECC) or should be more

appropriately called the Environmental Document of Condition (EDC).

Whereas, by specific provision of Sec. 12 of the NIPAS Law, this ECC can

only be issued only in areas outside of the scope of the Protected Area

Management Plan (PAMP);

e. The conditions for a permit to conduct any human activity in protected

areas are not the same as the conditions applicable outside the

protected area. Inside the protected area, the natural features and

aesthetic values of the area must be preserved and, if necessary,

restored. Thus, any human activity in the protected area must not only

also be in accord with the Plan, it must also be allowed only in areas

specifically zoned for such activities;

f. It is only in the zones outside of a protected area, as Sec. 12 specifically

states, such as in buffer zones where more human activity may be

allowed but subject to the Environmental Impact Assessment System.

The obvious reason for this requirement is to ensure that any human

activity in such zones outside the declared protected area does not do

harm to the latter;

40 Section 10, NIPAS

26

g. The Rules and Regulations for a protected area management Plan are all

contained in a Management Manual prepared by at least three (3)

experts41. On the other hand, the EIA/ECC application is prepared by

the Project Proponent;

h. The standards and conditions for the entry into, and use of, a protected

area are much more stringent than the standards for the use of a

property outside the protected area. The reason is obvious: The

Protected Area Management Plan focuses on the preservation and

protection of natural features and habitats of flora and fauna and not on

the use of the area for human intrusion and activity;

i. The object of the NIPAS Law is to secure, for the present and future

generations of Filipinos, the perpetual existence of all native plants and

animals of the Philippine Islands -- the crown jewel of the Earths

natural treasures. This is done through the establishment of a

comprehensive system of integrated protected areas within the

classification of national parks. The NIPAS Law seeks to apply on-the-

ground the principles of biological diversity and sustainable

development. It is meant to preserve the habitats of rare and

endangered species of plants and animals, identify bio-geographic zones

and related ecosystems -- terrestrial, wetland or marine. The law

mandates that these, and other places of natural beauty and wonder,

must be designated as protected areas;42 and

j. The IRR of the NIPAS Law, DAO No. 25, s. 1992, June 29, 1992 does not

even mention the Environmental Impact Assessment/ECC system. This

bolsters Your Petitioners contention that the ECC system is indeed not

applicable for permissible activities within a protected area. This is so

simply because in a protected area, there is a much more stringent set

of environmental standards that must be observed by anyone who enters

into, or uses it.

81. It is of judicial notice that when private respondent JAPEX was given

the go signal by public respondent DENR to proceed with its oil exploration

project pursuant to its constitutionally-infirmed Service Contract No. 46, the

latter agency had no Protected Area Management Plan in place for Taon Strait

Protected Seascape. And even up now, it also of judicial notice that public

respondent DENR still has no management plan formulated for the strait that is

in conformity with Section (9) of the NIPAS Act and its IRR.

41 Section 9, NIPAS42 Paraphrasing Section 2, NIPAS Act

27

82. For it to be valid, the NIPAS law sets forth the following fundamental

components to be made part of a Protected Area Management Plan:

a. Boundaries - The identification of the metes and bounds of the

protected area, including the buffer zones;

b. Zoning - Which includes the setting aside the areas for strict

protection, habitat conservation and rehabilitation, recreation zones,

multiple use zones and buffer zones;

c. Carrying Capacity The assessment of the carrying capacity, the

natural assets and limitations (for human population, water supply,

construction limits, etc.;

d. Resource Inventory The inventory of all resources inside the

protected seascape including flora and fauna; and

e. Other scientific studies as required by Sections 9 and 10 of RA 7586.

83. It is not controverted that when private respondent JAPEX started its

oil exploration project inside Taon Strait sometime in January of 2008, it was

armed only with an Environmental Compliance Certificate procured through a

highly irregular exemption from EIA process granted by public respondent DENR

through its bureau, the EMB. In lieu of the tedious EIA procedure, private

respondent was simply required by EMB to undergo the so-called IEE Checklist

process43.

84. It is likewise of judicial notice that when private respondent JAPEX

commenced its oil exploration project, public respondent DENR had no

Protected Area Management Plan formulated for the Taon Strait Protected

Seascape which in accord with Sec. (9) of the NIPAS Act.

85. By such omission and impropriety, the oil exploration project inside

Your Petitioners habitat pursuant to Service Contract No. 46 must perforce be

struck down for having been undertaken in contravention to law.

IV

The ECC issued to JAPEXResultant from IEE Transgresses the EIA Law

86. But assuming for arguments sake that an Environmental Compliance

Certificate (ECC) suffices for projects inside a protected seascape, the one 43 Initial Environmental Examination is applied in lieu of the EIA process for, among others, Non-Environmentally Critical Projects within an Environmentally Critical Area.

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issued however to private respondent JAPEX is another matter. The ECC which

was handed over to JAPEX in a silver platter was done in gross violation of the

EIA Law44 and fruit of an ultra vires act.

87. Its ECC must therefore be treated as an invalid document since it

was procured through an abbreviated process called Initial Environmental

Examination (IEE) Checklist, which procedure is short of what is required by the

statute for projects considered as environmentally critical and sited at

environmentally critical areas.

88. According to public respondent DENRs implementing rules and

regulations to the EIA Law, the Philippine EIA Process has six (6) sequential

stages: (1) Screening, (2) Scoping, (3) EIA Study and Report Preparation, (4) EIA

Review and Evaluation, (5) Decision Making, and (6.a) Post-ECC Monitoring,

Validation and (6.b) Evaluation/Audit stage. Stages 1, 2, 3 and 6a are all

proponent-driven while Stages 4, 5 and 6b are DENR-EMB driven stages.45

89. For purposes of a full-blown EIA Process, each of the preceding stage

has been described in the same IRR as follows:

a. Screening determines if a project is covered or not covered by the

PEISS. If a project is covered, screening further determines what

document type the project should prepare to secure the needed

approval, and what the rest of the requirements are in terms of EMB

office of application, endorsing and decision authorities, duration of

processing;

b. Scoping is a proponent-driven multi-sectoral formal process of

determining the focused Terms of Reference of the EIA Study.

Scoping identifies the most significant issues/impacts of a proposed

project, and then, delimits the extent of baseline information to

those necessary to evaluate and mitigate the impacts. The need for

and scope of an Environmental Risk Assessment (ERA) is also done

during the scoping session. Scoping is done with the local community

through Public Scoping and with a third party EIA Review Committee

(EIARC) through Technical Scoping, both with the participation of the

DENR-EMB. The process results in a signed Formal Scoping Checklist

by the review team, with final approval by the EMB Chief;

c. The EIA Study involves a description of the proposed project and its

alternatives, characterization of the project environment, impact

44 Presidential Decree 158645 Sec. 12, DAO 30-2003

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identification and prediction, evaluation of impact significance,

impact mitigation, formulation of Environmental Management and

Monitoring Plan, with corresponding cost estimates and institutional

support commitment. The study results are presented in an EIA

Report for which an outline is prescribed by EMB for every major

document type;

d. Review of EIA Reports normally entails an EMB procedural screening

for compliance to minimum requirements specified during Scoping,

followed by a substantive review of either composed third party

experts commissioned by EMB as the EIA Review Committee for

PEIS/EIS-based applications, or DENR/EMB internal specialists, the

Technical Committee, for IEE-based applications. EMB evaluates the

EIARC recommendations and the publics inputs during public

consultations/hearings in the process of recommending a decision on

the application. The EIARC Chair signs EIARC recommendations

including issues outside the mandate of the EMB. The entire EIA

review and evaluation process is summarized in the Review Process

Report (RPR) of the EMB, which includes a draft decision document;

e. Decision Making involves evaluation of EIA recommendations and the

draft decision document, resulting to the issuance of an ECC, CNC or

Denial Letter. When approved, a covered project is issued its

certificate of Environmental Compliance Commitment (ECC) while an

application of a non-covered project is issued a Certificate of Non-

Coverage (CNC). Endorsing and deciding authorities are designated by

AO 42, and further detailed in this Manual for every report type.

Moreover, the Proponent signs a sworn statement of full

responsibility on implementation of its commitments prior to the

release of the ECC. The ECC is then transmitted to concerned LGUs

and other GAs for integration into their decision making process; and

f. Post-ECC Monitoring, Validation and Evaluation/Audit stage assesses

performance of the Proponent against the ECC and its commitments

in the Environmental Management and Monitoring Plans to ensure

actual impacts of the project are adequately prevented or mitigated.

90. In stark contrast, the simplified process observed in an IEE

application as described in the IRR are as follows:

a. Informal Scoping (option of the Proponent) where the Proponent may

opt to request EMB CO/RO to scope the IEER. In the scoping meeting,

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the Proponent and EMB jointly fill out the Scoping Checklist. The

accomplished form may be signed by both parties to serve as the

official TOR of the IEER;

b. EIA Study and Report Preparation where Proponent undertakes the

IEE Study. DENR-EMB personnel may clarify procedural and technical

matters on the EIA process but is not allowed to take part in the EIA

study or in the preparation of the report. X x x Project Grouping

Matrix highlights project types with available IEE Checklists under

Groups I and II. Checklists must be used if these are provided by EMB.

The IEE Report Outline is x x x provide(d) (in) templates for the

Impacts Management Plan and Environmental Monitoring Plan. The

Proponent is reminded to submit the filled-out (form) with the

IEER/IEEC as basis of EMB for prioritization in compliance monitoring

and evaluation x x x (and) Pro-forma Sworn Statements of

Accountability of Proponent and Preparers for attachment in the

IEER/IEEC;

c. EIA Report Review and Evaluation which includes procedural

screening, setting up the review fund, and submission of procedurally

acceptable application documents;

d. Substantive review of the application which includes inviting EMB

Reviewers and Distribution of EIA Reports, optional site visitation,

etc;

e. Endorsement of Recommendation ;

f. Issuance of Decision Document ; and

g. Transmittal of ECC .

The immediately preceding was the process applied to JAPEX regarding

its oil exploration project at Your Petitioners habitat in Tanon Strait Protected

Seascape.

91. As gleaned from the above comparative presentation, the IEE process

may be appropriately monickered as an office-table made process. Due to its

superficial character, the IEE Checklist method cannot validly apply to projects

involving oil exploration inside a critical habitat like the one at bar.

92. Your Petitioners note that Sec. (4) of Presidential Decree 1586 which

establishes the Environmental Impact Statement (EIS) System expressly

prohibits any person, partnership or corporation to undertake any project

inside an environmentally critical area without first securing an Environmental

Compliance Certificate (ECC).

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93. Environmentally Critical Areas (ECAs) include, inter alia, all areas

declared by law as national parks, watershed reserves, wildlife preserves, and

sanctuaries and areas set aside as aesthetic potential tourist spots; and areas

which constitute the habitat of any endangered or threatened species of

Philippine wildlife (flora and fauna) like Tanon Strait.46 On the other hand,

Environmentally Critical Projects (ECPs) include, among others, resource-

extractive industries like major mining and quarrying activities47; and by

implication, oil exploration like the one undertaken by private respondent

JAPEX.

94. In Section 2 of Presidential Decree 1586, it is declared that: There

is hereby established an Environmental Impact Statement (EIS) System founded

and based on the environmental impact statement required, under Section 4 of

Presidential Decree No. 1151, of all agencies and instrumentalities of the

national government, including government-owned or controlled corporations,

as well as private corporations, firms and entities, for every proposed project

and undertaking which significantly affect the quality of the environment.

95. The statute defines an Environmental Compliance Certificate (ECC)

as a document issued by the government agency concerned certifying that the

project under consideration will not bring about an unacceptable

environmental impact and that the proponent has complied with the

requirements of the environmental impact statement system.48 Under the law,

an ECC may be issued after its project proponent has truly undergone the EIA

process. Hence, an IEE Checklist procedure should not result into the issuance

of an ECC as the process is short of what is required of the statute.

96. An Environment Impact Assessment (EIA), on one hand, is a process

that involves predicting and evaluating the likely impacts of a project

(including cumulative impacts) on the environment during construction,

commissioning, operation and abandonment. It also includes designing

appropriate preventive, mitigating and enhancement measures addressing

these consequences to protect the environment and the communitys welfare.49

97. However, there is a better definition which can be found in the

European Union website where it describes an Environmental Impact

46 DAO 03-3047 Ibid48 Sec. 3[m], Republic Act 7945 or the Philippine Mining Act of 199549 DAO 03-30

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Assessment as a procedure that ensures that the environmental

implications of decisions are taken into account before the decisions are

made. The process involves an analysis of the likely effects on the

environment, recording those effects in a report, undertaking a public

consultation exercise on the report, taking into account the comments and

the report when making the final decision and informing the public about

that decision afterwards.50

98. The EIA procedure ensures that environmental consequences of

projects