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Responding to Judicial Initiatives in Environmental Law Through

Environmental Law Education

By Roberto Rafael J. Pulido



Table of Contents

Section Page

Introduction ………………………………………………………………………………. 1

I. Societal Context …………………………………………………………………….. 2A. Seeds of Environmental Degradation ………………………….. 2B. “Development” at the Expense of the Environment …….. 6

II. Evolution of Philippine Law

Significant Milestones in Environmental Law ………………... 10Challenges ……………………………………………………………………… 15

III. Judicial ResponseJudicial Initiative …………………………………………………………… 17Limitations of Judicial Action ……………………………………… 19

IV. Responding to Judicial Initiatives with Environmental Law Education 21

V. A Proposed Course in Response to the Judicial Initiatives ………. 23

CONCLUSION …………………………………………………………………………………. 24

APPENDIX A

APPENDIX B



1

INTRODUCTION

Throughout the many regime changes that have occurred in the Philippines, thecountry has managed to come up with many environmental laws. Beginning withpiece-meal legislation that was mainly designed to protect public health and welfare

during the colonial period, environmental laws have evolved into integrated andcomprehensive laws for environmental protection and management that even allowfor meaningful people’s participation at different levels. Despite this, environmental

degradation continues. The judiciary has thus taken initiatives to play a more activerole in environmental protection. But constitutionally, the judiciary can onlyadjudicate actual controversies. It therefore cannot, on its own, enforce the law.Nonetheless, the judiciary’s initiatives can acquire much significance if other sectors

of Philippine society would respond and act to invoke judicial power. Law schools,as the gatekeeper of the law profession, can play an important role in bringing aboutsuch a response. The author therefore proposes an LLM in Environmental Lawprogram for Philippine lawyers to recruit, develop and train lawyer-environmental

advocates, as well as equip lawyers already in the field of environmental law, withthe necessary tools to further improve policy making and law enforcement.

Section I of this paper discusses the societal context. It briefly discusses Philippinehistory and how the social, economic and political developments have shapedenvironmental law in the country. Section 2 then traces the evolution of Philippinelaw and outlines the challenges the country is facing. Section 3 discusses theinitiatives taken by the Judiciary and the limitations of such initiatives. Section 4discusses how law schools can respond to these judicial initiatives and Section 5proposes an LLM program specializing in Environmental law.



I. Societal Context

Seeds of Environmental Degradation

The Philippines is an archipelago consisting of around 7,107 islands covering300,000 square kilometers—298,170 square kilometers of land and 1,830 squarekilometers of water.1 Although it is a relatively small nation, it is rich in naturalresources. It is in fact, one of only seventeen countries that have within theirborders more than two-thirds of our planet’s biological wealth and is thus

considered a megadiversity2 country3.

The Philippines has extensive water resources, including 31,000 hectares of rivers;200,000 hectares of lakes; 19,000 hectares reservoirs; and 246,063 hectares ofswamplands. There are 421 river basins, of which 20 are considered major riverbasins. Major rivers are the Cagayan – the country‘s longest river – the Agno,

Pampanga, Pasig and Bicol Rivers in Luzon, and the Rio Grande de Mindanao. Thereare 99 significant lakes; 16 lakes cover 400 hectares or more. The largest lakes arethe Laguna de Bay on Luzon and Lake Lanao on Mindanao. Philippine rivers andlakes are home to more than 316 fish species, some of which are endemic.4 Philippine coastal waters are in the apex of the “coral triangle”, the center of the

most diverse habitat in the marine tropics5 and as such hosts one of the world’srichest concentration of marine life. The country’s coral reefs are among the richest

and most diverse in the world, with about 464 species of hard corals and more than50 species of soft corals.6

The Philippines is also situated along the Circum-Pacific Rim of Fire, where the

processes of volcanism and plate convergence caused the deposition of minerals,

1 USAID. USAID Land Tenure and Property Rights Portal. “Philippines” January 2011. Available at

http://usaidlandtenure.net/philippines. Last visited February 26, 2013.2 Megadiversity country is one of only 17 countries that possess the greatest number and diversity ofplants and animals.3 Conservation International. “Megadiversity: the 17 Biodiversity Superstars” available athttp://www.conservation.org/documentaries/Pages/megadiversity.aspx. Last visited February 26,2013.4 USAID, USAID Country Profile: Philippines-Property Rights and Resource Governance,http://usaidlandternure.net/sites/default/files/country-profiles/fullreports/USAID_Land_Tenure_Philippines_Profile.pdf

5 Cleto L. Nañola Jr., Porfirio M. Aliño & Kent E. Carpenter, Exploitation-Related Reef Fish SpeciesRichness Depletion in the Epicenter of Marine Biodiversity , Springer Science+Business Media B.V.November 2010, at 1.

6 WB Report, Philippine Environment Monitor 2004: The Blue Environment.http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/EASTASIAPACIFICEXT/EXTEAPREGTOPENVIRONMENT/0,,contentMDK:21019639~menuPK:502892~pagePK:34004173~piPK:34003707~theSitePK:502886,00.html ); p39 ; also available athttp://siteresources.worldbank.org/INTPHILIPPINES/Resources/39-46-BlueEnvt.pdf .

http://usaidlandtenure.net/philippines


http://www.conservation.org/documentaries/Pages/megadiversity.aspx


http://usaidlandternure.net/sites/default/files/country-profiles/fullreports/USAID_Land_Tenure_Philippines_Profile.pdf



http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/EASTASIAPACIFICEXT/EXTEAPREGTOPENVIRONMENT/0,,contentMDK:21019639~menuPK:502892~pagePK:34004173~piPK:34003707~theSitePK:502886,00.html




http://siteresources.worldbank.org/INTPHILIPPINES/Resources/39-46-BlueEnvt.pdf












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both metallic and non-metallic. Consequently, large reserves of various kinds ofminerals are believed to be beneath its ground and this has put the country in theworld mineral map as 5th mineral country in the world.7 In 1994, estimated levelsof metallic mineral resources stood at 7 billion metric tons, and of nonmetallicresources at 50 billion metric tons. Copper accounts for 72% of total reserves in the

country; limestone and marble are the most significant nonmetallic mineralresources. In 2005, petroleum reserves stood at 456 million barrels of fuel oilequivalent.8

Because of the richness of its natural resources the Philippine economy has alwaysbeen dependent on natural resource extraction. Unfortunately, the early stages of itsdevelopment into a democracy ironically led to the concentration of control overthese resources in the hands of the few.

Prior to the colonization of the Philippines by the Spaniards, land was controlled bythe village community under the chief or “datu”.9 When the Spanish took over in

1568, they transformed the datu into an administrative official responsible forcollecting taxes and recruiting labor under an encomienda system – a system wherelarge plots of land and the people living there were entrusted to the conquistadorwho had to administer the region and control agricultural production.10 Thus, thefirst landlords were installed by an external force and the small cultivators of theearly Philippines were slowly transformed into tenants while village chiefs werecoopted in exchange for some share in the land.

When the United States took control of the nation in 1898, it cultivated andsupported this class of former village chiefs as part of its military and politicalpacification campaign. The US allowed them much leeway to control economic

resources with very little state intervention.11 This started not only the unhamperedextraction of natural resources by the elite, but also the unfortunate cycle of gainingaccess to political power through economic power and the political power thusgained will in turn be used to gain more economic power. In fact, more than ahundred years later, the USAID, in 2013 observed essentially the same thing –

”.. land and natural resources are highly politicized in the Philippines.Control over land and resources is often a major strategy formaintaining political control; traditional politics are oriented towardmaintaining elite control over the nation‘s land and other resources.

This has created a dualistic economy, where the welfare of the elite

7 Philippine Department of Environment and Natural Resources.http://www.denr.gov.ph/index.php/component/content/article/16.html8 USAID. Philippines: Property Rights and Resource Governance.9 Gould, David. The Evolution of Land Tenure in Forestry Management in the Philippines. May 16,2002. Available at www.spatial.maine.edu/-onsrud/Landtenure/CountryReport/Philippines.pdf 10 Ibid.11 Mongabay.com. The Philippines – Political Economy of Development. Available athttp://www.mongabay.com/reference/country_studies/philippines/ECONOMY.html

http://www.spatial.maine.edu/-onsrud/Landtenure/CountryReport/Philippines.pdf



http://www.mongabay.com/reference/country_studies/philippines/ECONOMY.html






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and the poor majority are often in opposition. A central problem, then,is the political economy which perpetuates control of economic assets(land, resources) and political power by a small grouping of wealthyfamilies. ―The problems of democracy subverted are thus intimately

tied to those of disappearing natural resources and continuing

widespread poverty and inequity.”

This is not to say however, that the wealthy class peacefully coexisted. Truth is,increasing economic and political power of this early elite led to intra-elite conflicts.Thus, by the 1960s the continued marginalization of the large majority of smallcultivators led to social unrest on the one hand, and intra-elite conflicts on the other.In order to manage the intra-elite conflicts, the government, then headed byFerdinand Marcos, called for a Constitutional Convention in the late 1960s. Thisdevelopment would have been “a classic case of intra-elite conflict benefiting massparticipation.”12 But what should have been an opportunity for the under-privilegedand under-represented to open up the government to new social forces was

subverted by the declaration of Martial Law by President Ferdinand E. Marcos.

Ironically, Marcos used the masses’ desire for access to resources to justify MartialLaw. Marcos and his henchmen claimed that the martial law regime was needed toredistribute land, achieve peace and order and pursue economic development.13 Intruth however, land redistribution was more of propaganda than a reality. Like allprevious land reform programs in the Philippines, Marcos’ land reform was not

really intended to reduce substantially the huge gap between the peasantry and theelite.14 Land reform was undertaken only to control social unrest. As of July 1976only 100,000 tenants had received “certificates of land transfer”, about 25 per cent

of the original program goal.15 And certificates of land transfers did not really

transfer ownership to the tenants. Instead, it merely provided a promise of futurebenefit subject to paying amortization installments to the Land Bank of thePhilippines. Worse, Marcos’ own landholdings (reportedly 20,000 hectares in

Cagayan Province, 10,000 hectares in Isabela, the Carlota sugar estate and SugarCentrals in Negros Occidental and several hundred hectares in Davao and otherparts of Mindanao) remained untouched by the supposed reform.16

12 Wurfel, David. “Martial Law in the Philippines: the Methods of Regime Survival. Pacific Affairs, Vol.50, No. 1 (Spring, 1977), pp. 5-30. Available at http://davidwurfel.ca/philippines/martial-law-in-the-philippines-the-methods-of-regime-survival

13 Ibid.14 Kerkvliet, Benedict. “Land Reform in the Philippines since the Marcos Coup.” Pacific Affairs.Volume 47, 3: 286-304. Available athttp://stevens.vermontlaw.edu:2053/stable/2755767?seq=3&Search=yes&searchText=LAW&searchText=PHILIPPINES&searchText=LAND&searchText=OWNERSHIP&searchText=MARTIAL&list=hide&searchUri=%2Faction%2FdoBasicSearch%3FQuery%3DLAND%2BOWNERSHIP%2BAND%2BMARTIAL%2BLAW%2BIN%2BTHE%2BPHILIPPINES%26acc%3Don%26wc%3Don%26fc%3Doff&prevSearch=&item=8&ttl=306&returnArticleService=showFullText&resultsServiceName=null 15 Ibid.16 fn 10.

http://davidwurfel.ca/philippines/martial-law-in-the-philippines-the-methods-of-regime-survival




http://stevens.vermontlaw.edu:2053/stable/2755767?seq=3&Search=yes&searchText=LAW&searchText=PHILIPPINES&searchText=LAND&searchText=OWNERSHIP&searchText=MARTIAL&list=hide&searchUri=%2Faction%2FdoBasicSearch%3FQuery%3DLAND%2BOWNERSHIP%2BAND%2BMARTIAL%2BLAW%2BIN%2BTHE%2BPHILIPPINES%26acc%3Don%26wc%3Don%26fc%3Doff&prevSearch=&item=8&ttl=306&returnArticleService=showFullText&resultsServiceName=null















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To protect himself from the other factions of the economic elite, Marcosstrengthened his faction using his martial law powers and began channelingresources to himself and his associates, instituting what came to be called “crony

capitalism”.17 Instead of democratizing access to common resources, Marcos and hiscronies monopolized it.

In the forestry sector for example, Marcos used his martial law powers tomonopolize logging, the Philippines’ top export industry in the 1960s.18 Marcos usedhis absolute power to deny or grant logging licenses to either enrich himself and hiscronies, or to gain the support of the economic elite. A political supporter forexample, was given forest concessions covering around 155,000 hectares and asister of his was allowed to start a logging company with concessions covering200,000 hectares. 19 Other relatives were installed as either members orchairpersons of boards of various boards of logging companies.20

For its failure to deliver on its promise to democratize access to economic resources

and its intentional marginalization of the economic elite who opposed him, theMarcos regime became very unpopular by the early 1980s. This worsened whenformer Senator Benigno Aquino, a popular Marcos critic, was assassinated in 1983upon his return from exile.21

To check the growing unrest and to legitimize his rule, Marcos called for snapelections22 in 1985. The desire to challenge Marcos unified the elite oppositionunder the candidacy of Benigno Aquino’s widow, Corazon Aquino and her candidacy

enjoyed widespread popular support.

Marcos was officially declared the winner of the 1986 elections amidst widespread

reports of cheating and violence. Consequently, the elections, instead of stabilizingMarcos’ rule, further destabilized it. A group of young officers of the Armed Forces

of the Philippines then planned a coup d’état against Marcos. But t he plot wasdiscovered and Marcos sought to arrest all those involved in the coup. In a massivedisplay of public support for those who defied Marcos, people from all walks of lifewent out and protected the coup plotters from Marcos’ men. In a matter of days,hundreds of thousands of people gathered around the military and police camps atEpifanio Delos Santos Avenue (EDSA) where the coup plotters were holed up.People around the camps blocked tanks and armed military men with their bodies,making the Marcos military unable to advance towards the coup plotters. As the

17 fn 10.18 Vitug, Marites. “The Politics of Logging in the Philippines”. The Politics of Environment in Southeast Asia edited by Philip Hirsch and Carol Warren. Routledge. January 31, 2002.19 Ibid.20 Ibid.21 See BBC News. “1983: Filipino Opposition Leader Shot Dead.” Available athttp://news.bbc.co.uk/onthisday/hi/dates/stories/august/21/newsid_2534000/2534945.stm 22 The elections in 1986 were referred to as “snap elections” because it was not a scheduled electionsbut one that was called for by Marcos to prove that he had the support of the Filipino people.

http://news.bbc.co.uk/onthisday/hi/dates/stories/august/21/newsid_2534000/2534945.stm





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number of people grew, military units started defecting to the side of the coupplotters. Advancing forces were transformed into defending forces until Marcosfound himself without any military support and fled the country. Corazon Aquinowas installed as the country’s president.23 Named after the main thoroughfarewhere the biggest demonstration of public support for the rebellion against Marcos

was manifested, the transition became known as the ”bloodless people powerrevolution of EDSA”, today simply referred to as the “EDSA Revolution”.

Unfortunately, while the EDSA revolution allowed the Filipino people to realize theircollective power, it did very little to address the centuries old highly inequitabledistribution of wealth between the rich and the poor. 24 The data from 1965-1991show that the basic pattern of inequality in percentage share of income survivedthrough the political regime changes in the country. Thus, the top 10 percent of thepopulation received 40.1 percent of income in 1965 and 37.8 in 1991. The lowest 10percent on the other hand had only 1.1 percent and 1.8 percent, respectively. Whilethe top 50 percent received 82.7 percent of income in 1965 and 81.1 percent in

1991, the lowest 50 percent had only 17.3 percent of the income in 1965 and 18.9percent in 1991.25

23 See National Historical Commission of the Philippines. “The Revolution of ’86.” Available athttp://www.nhcp.gov.ph/index.php?option=com_content&task=view&id=561 24 See Doronila, Amando. “People Power for 1-Man Rule”. Philippine Daily Inquirer. February 27,2012. Available at http://opinion.inquirer.net/23887/people-power-for-1-man-rule 25 Magallona, Merlin and Ben S. Malayang III. Environmental Governance in the Philippines.University of the Philippines. Available atsite.iugaza.edu.ps/.../Environmental_Governance_in_the_Philippines.pdf

http://www.nhcp.gov.ph/index.php?option=com_content&task=view&id=561


http://opinion.inquirer.net/23887/people-power-for-1-man-rule







“Development” at the Expense of the Environment

In his work entitled “ Inequality and Environmental Protection,“26 Boyce posits thatbecause the wealthy get more net benefits from environmentally degrading

activities than the poor, and they possess the power, the power-weighted socialdecision will tend to favor more environmental degradation. Such a situation isreadily apparent in the Philippines.

In order to meet the food demands of a growing population without having to giveup their monopolistic hold on the country’s economic resources, the Philippine elite

has always emphasized agricultural intensification. Consequently, farming systemsin the Philippines “can be generally characterized by intensive farm productionusing inorganic fertilizers and pesticides.”27

Since the introduction of High Yielding Varieties (HYV) of rice in the 1960s, the

government has encouraged the use of chemical fertilizers and pesticides bysubsidizing farmers through different crop improvement programs. 28 Over-utilization of these inputs lead to the decrease in the soil’s humus content, which

adversely affects its infiltration and water-holding capacities.29 The loss of these twovital soil characteristics, in turn, makes the soil loose and more susceptible toerosion.30

Side by side with this agricultural intensification is an export led industrializationstrategy. This strategy seeks to encourage transnational corporations to locatecertain segments of their productive processes in the Philippines.31 Part of thisstrategy involves the creation of special economic zones where these transnational

corporations can locate. In the special economic zone known as Calabarzon forexample, a land area of 6,229 square kilometers or 5 Percent of the country’s total

land area was developed so that transnational corporations may locate therein. Thistriggered massive conversion of prime agricultural lands to housing, commercialestablishments, and industrial estates.32 About 20,000 ha of farmlands wereconverted every year (from 1970 to 1980) to be used for other land uses. Landlessfarmers dislocated by this massive conversion of land use were thus driven toforestlands where they practice lowland agricultural practices that further cause

26 James K. Boyce, Inequality and Environmental Protection, (University of Massachusetts Amherst,Political Economy Research Institute, Working Paper No. 52, 2003).27 Briones, Nicomedes. “Environmental Sustainability Issues in Philippine Agriculture”, Asian Journalof Agriculture and Development, Volume 2, Nos. 1 and 2.www.searca.org/web/e_library/.../briones.pdf 28 Ibid.29 Ibid.30 Ibid.31 Magallona, supra fn 25.32 Briones, supra fn 27



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resource degradation.33

Conversion of agricultural land, deforestation, migration of landless farmers, andpollution caused by chemical fertilizers caused the loss of biodiversity, threatenedthe country’s coastal resources, and degraded the freshwater ecosystem.

The overall result of all these is devastating. Forest cover had declined from anestimated 21 million hectares or 70 percent of the country’s total land area in 1900,

to only 5.4 million hectares or 18.3 percent by 198834.Among 89 tropical countries, the Philippines is one of 11 with the lowest forest percapita—and most of its watersheds are considered degraded35.

The World Bank reports that significant portions of land that had been classified andconsidered as forests are actually no longer forested, and have been put to use foragriculture or settlements36. Worse, these once forested lands that have beenconverted to agricultural use continues to be converted from agriculture to other

uses. From 1988 to 2000, a total of 34,207 hectares of agricultural land—an averageof 2,631 hectares per year—was converted from agriculture to other land uses37.

Of the total land area, 76 percent faces some extent of degradation. Forty fivepercent of the total arable land, and 66 percent of non-agricultural land, have beenmoderately to severely eroded, triggering the movement of subsistence farmers tomarginal lands to meet their daily food requirement. Soil erosion has resulted in thereduction in soil productivity and water retention capacity. This situationpredisposes degraded lands to drought and other water availability problems38. Soilerosion also causes offsite effects such as sedimentation of lakes, reservoirs andirrigation canals, and paddy fields. As a result of which productivity of downstream

irrigated lowlands becomes low. Rice yields in farms heavily affected by siltationwere reported to have decreased by 27% in a period of 5 years.39 The PhilippineNational Action Plan (2004-2010) in fact, identified soil degradation as a majorthreat to food security. It reported the degradation of the land has resulted in a 30 to50% reduction in soil productivity and water retention capacity40.

33 Ibid.34 WB Report, Philippine Environment Monitor: The Green Environment .http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/EASTASIAPACIFICEXT/EXTEAPREGT

OPENVIRONMENT/0,,contentMDK:21019639~menuPK:502892~pagePK:34004173~piPK:34003707~theSitePK:502886,00.html, p.9; also available athttp://siteresources.worldbank.org/INTPHILIPPINES/Resources/6-15-GreenEnvt.pdf.35 Ibid.36 Ibid.37 Ibid.38 Ibid.39 Victor Asio, Reinhold Jahn, Federico Perez, Ian Navarette & Sergio M. Ambit, A Review of Soil

Degradation in the Philippines, 31 Annals of Tropical Research 2, 69-94 (2009).40 Ibid.










9

The Philippines has been identified by the International Union for Conservation ofNature (IUCN) as a biodiversity “hotspot”—a country where biodiversity isextremely threatened by deforestation, conversion, fragmentation of naturalhabitats, unregulated trade, and overall low environmental quality 41 . Thegovernment has identified 91 critically endangered species, 74 endangered, and 253

vulnerable species.42

Solid waste disposal continues to be a growing crisis in urban centers in thePhilippines.43 In 2005, it was estimated that an average Filipino generates 0.3 kgs ofgarbage in rural areas and 0.5 kgs. in urban areas. Worst, it was estimated then thatthe annual waste generation would grow by 40% by 2010.44 Management of thisenormous amount of solid wastes remains problematic because the World Bankreports that only 9 of 117 cities and 46 of 1,500 municipalities have solid wastemanagement plans.45

The Philippines has 421 river basins in 119 proclaimed watersheds. However,

within South Asia, it ranks among the lowest in terms of annual freshwateravailability per capita. The 1,907 m3, per capita availability is lower than Asian andworld averages.46 Country water demand is expected to increase from 1,303 m3 in1995 to 3,955 m3 in 2025.47 Water shortages in highly populated areas, especiallyduring the dry season are common48. Several river basins (Pampanga, Agno, Pasig-Laguna, and on the island of Cebu) are also experiencing generalized waterscarcity.49 15 rivers nationwide have dissolved-oxygen at or below zero, indicatingthat they are “dead” during the dry months.50

The World Bank reports that in the four critical regions of the country (NationalCapital Region Central Luzon, Southern Tagalog, and Central Visayas) up to 58

percent of groundwater sampled is contaminated with coliform bacteria, and needstreatment. Correlatively, 31 percent, of illnesses monitored for a five-year periodwere caused by water-borne pathogens.51

41 WB Report; fn 35 p942 State of the Philippine Environment: A Progress Report , Vol. X Dev Pulse (NEDA DevelopmentAdvocacy Fact Sheet) 43, 2 (2006).43 WB. Philippine “Environment Monitor; The Brown Environment.”http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/EASTASIAPACIFICEXT/EXTEAPREGTOPENVIRONMENT/0,,contentMDK:21019639~menuPK:502892~pagePK:34004173~piPK:3400370

7~theSitePK:502886,00.html ); p1744 Senate Economic Planning Office, Philippine Brown Environment Quality , At a Glance (SenateEconomic Planning Office, Republic of the Philippines), Nov. 2005, at 2.45 World Bank, Philippine Environment Monitor. The Brown Environment46 WB, fn 44; p27-2847 Ibid.48 Ibid.49 Ibid.50 Ibid, at page 29.51 Ibid.










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According to the World Bank the health costs of particulate matter PM10 pollutionin four cities (Metro Manila, Davao, Cebu, and Baguio) of the Philippines for the year2001 have been estimated to be more than US$400 million. The Bank thereforeestimates that if the rest of the country’s population is assumed to be exposed to

pollutant levels similar to those in these four cities, a high annual estimate for urban

health cost for the country is over US$1.5 billion.52

Over 30 percent of the reefs in the country are in poor condition. Moreover, therehas been a steady decline in the quality of the coral reefs—and only about 0.24percent was reported to be in excellent condition in 2004, as compared to 4.3percent in 2000 and 5.3 percent in 1991. Ninety-eight percent of these reefs areunder medium or high threat.

Mangrove cover is also suffering a decline. The 95 percent of the remainingmangroves in the country are secondary growth in areas with mixed uses- and typesof forest. Only five percent are old or primary mangroves, and these are mostly

found in Palawan.53

II. Evolution of Philippine Environmental Law

Significant Milestones in Environmental Law

Philippine environmental law began with laws that sought to protect the health andwelfare of the people54. Thus, though the early laws had its environmental impact,the concern for the environment only took on a secondary role.55 The Spanish Law

of Water of 1866 for example (which was implemented in the Philippines in 1871)authorized the Spanish Governor General to suspend industrial operations if itcaused contamination of water resources injurious to public health.56

When the US took over in the early 1900s, it introduced several piece-meal or useoriented environmental laws. These included Act No. 2152 which provided forwater quality management and regulation of the appropriation of public waters; ActNo. 2812 which prohibited the cutting and utilization of fruit trees in public orcommunal forests; Act No. 3992 regulated disagreeable sound, noise, odor or smokefrom motor vehicles; and, Act No. 3983 protected wild flowers and plants.57

After the country gained independence, laws were enacted to address the growingproblem of over-extraction of resources and pollution. Republic Act No. 3931

52 WB, fn 44; p1853 WB, fn 6; p3954 Magallona, supra fn 2555 Ibid.56 Ibid.57 Ibid.



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established the National Water and Air Pollution Control Commission in 1964, theReforestation Commission was created under Republic Act 2706 to arrestdeforestation and Republic Act No. 5752 was enacted to control the worseningpollution of Laguna Lake.58

Under Martial Law, President Marcos enacted a host of environmental laws either toconsolidate his control over the country’s resources or to boost his internationa limage that was suffering because of Martial Law.

In 1975, Marcos issued Presidential Decree No. 705—the Revised Forestry Code --ostensibly to improve forest protection. However, as earlier mentioned, the decreegave Marcos the power to grant or deny logging licenses and he used this power tocontrol one of the most important export products of the country during the period.

To improve his international image however, Marcos also promulgated a host ofother environmental laws following the United Nations Conference on the Human

Environment in Stockholm in 1972. Following the Stockholm Conference, Marcos’decrees reflected “an integrated approach to environmental protection and it gave

impetus to a more unified national action towards this objective.”59 Thus, P.D. 1067(The Water Code) was promulgated to consolidate the laws governing theownership, appropriation, utilization, exploitation, development, conservation andprotection of water resources and to cope with the increasing scarcity of water andchanging patterns of water use.60 Two years later, The Philippine EnvironmentalCode (P.D. 1152) was promulgated to establish a comprehensive program forenvironmental protection and management. It contained provisions on air qualitymanagement (Title I), water quality management (Title II), land use management(Title III), natural resources management and conservation61 (Title IV), and solid

waste management (Title V). This was followed by Presidential Decree 1151 todeclare the nation’s environmental policies and goals. The Decree declared that it isthe nation’s environmental policy:

(a) to create, develop, maintain and improve conditions under which manand nature can thrive in productive and enjoyable harmony with eachother;

(b) to fulfill the social, economic and other requirements of present andfuture generations of Filipinos; and,

(c) to insure the attainment of an environmental quality that is conducive toa life of dignity and well-being62

58 Ibid.59 Ibid.60 Articles 5 and 6, PD 106761 Title IV included Chapters on Fisheries and Aquatic Resources, Wildlife, Forestry and SoilConservation, Flood Control and Natural Calamities, Energy Development, Surface and GroundWaters, and Mineral Resources.62 Section 1, P.D. 1151



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The Decree also initially established an Environmental Impact Statement (EIS)System wherein every person who shall undertake an activity or project that wouldsignificantly affect the quality of the environment is required to prepare and file anEnvironmental Impact Statement wherein the project proponent, among others, isrequired to disclose the adverse environmental impacts of his proposed activity and

the alternatives to the proposed action. P.D. 1586 however, was subsequentlypromulgated in 1978. Under this law, the President empowered himself to declarecertain projects, undertakings or areas in the country as environmentally critical.Thus, certain projects may be exempted from the EIS requirement established underPD 1151 if, according to Marcos’ sole determination, they are not environmentally

critical or are they not undertaken in an environmentally critical area.

Following the EDSA revolution discussed above, the Filipino people ratified a newConstitution in 1987. Inspired by the collective power displayed by the peopleduring the peaceful revolution, the new Constitution laid down the foundations forthe enactment of more progressive environmental statutes. Among others, it

declared the following state policies:

(1) To protect and advance the right of the people to a balanced and healthfulecology in accord with the rhythm and harmony of nature63;

(2) To recognize and promote the rights of indigenous cultural communitieswithin the framework of national unity and development 64;

(3) To encourage non-governmental, community-based, or sectoralorganizations that promote the welfare of the nation. 65; and

(4) To adopt a policy of full public disclosure of all its transactions involvingpublic interest.

Consistent with these declared policies, the environmental statutes that wereenacted after 1987 emphasized the people’s right to information and their right toparticipate in the formulation of policies that affected their environment.

The Toxic Substances and Hazardous and Nuclear Wastes Control Act (1991), thefirst environmental enactment after EDSA, in regulating the importation,manufacture, processing, handling, storage, transportation, sale, distribution, use,and disposal of all chemical substances and mixtures that present unreasonable riskand/or injury to health or the environment, the law provides for public access to“records, reports, or information concerning chemical substances and mixturesincluding safety data submitted, data on emission or discharge into the

environment..”66 It also allots one seat for an NGO representative in the Inter-Agency Technical Advisory Council67.

63 Section 16, Article II, 1987 Philippine Constitution64 Section 22, Article II, 1987 Philippine Constitution65 Section 23, Article II, 1987 Philippine Constitution66 Section 12, Republic Act 696967 Section 7, Republic Act 6969



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The Small-Scale Mining Act (1991), The National Integrated Protected Areas System(NIPAS) Act (1992), The Fisheries Code (1998), the Ecological Solid WasteManagement Act (Republic Act No. 9003), and the Clean Water Act (Republic Act No.9275) all provide for mechanisms by which NGOs and other stakeholders can

participate in policy making at all levels.68

Thus, as the post-EDSA governmentstrengthened the general policies defined under the Environmental Code enactedduring the Marcos era, new legislation allowed for meaningful people’s participation

in determining the manner by which the environment shall be protected whiledevelopment is pursued.

Moreover, legal developments in other parts of the globe have influencedenvironmental legislation in the Philippines. Consequently, Philippineenvironmental laws are no longer limited to command and control measures.

The Clean Air Act of 1999, for example has, for the first time, introduced creative

measures patterned after other countries. The Act calls for the designation ofairsheds wherein areas with similar climate, meteorology and topology, or thosewhich share common interest or face similar development programs, prospects orproblems shall be considered as one unit. These airsheds shall serve as the basicunit for air quality management 69. The law requires the preparation of an AirQuality Improvement Framework and an Air Quality Control Action Plan which shallprescribe the emission reduction goals using permissible standards, controlstrategies and control measures to be undertaken within a specified time period,including cost-effective use of economic incentives, management strategies,collective actions, and environmental education and information; sets nationalambient air quality and emission standards.70 Pursuant to the polluters pay

principle, the law establishes an emission charge system that would chargeindustrial dischargers and motor vehicle dischargers emission fees that shall bebased on the volume and toxicity of the discharge71. It also provides for taxincentives to industries that shall install pollution control devices or retrofit theirexisting facilities with mechanisms that reduce pollution72.

The Clean Air Act is also the first environmental legislation that provided forcitizen’s suits. Thus under the law, any citizen may file the appropriateadministrative, civil or criminal action against any violator of the act, or againstgovernment officers or agencies charged with its implementation yet issues order,rules or regulations inconsistent with the law, or against any government official

who fails to perform his duty to implement the law.73

68 See Appendix A for more details about the environmental laws69 Section 9, Republic Act 874970 Section 7, Republic Act 874971 Section 13, Republic Act 8749.72 Ibid.73 Section 41, Republic Act 8749



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Moreover, the law exempts anyone availing of the citizen’s suit provision from

paying filing fees, or from posting injunction bonds in cases where the citizen canshow that the action was triggered by the non-enforcement of the act or by aviolation of the same.74.

The Act likewise protects private persons bringing a citizen’s suit or a public officialimplementing the provisions of the Act from suits and strategic legal actions againstpublic participation and enforcement of the act. Thus, under the law, when a suit isbrought against a person who filed an action in accordance with the citizen’s suit

provision of the Act, or against any person, institution or government agency thatimplements the Act, the law makes it a duty of the investigating prosecutor or thecourt, as the case may be, to immediately make a determination not exceeding thirty(30) days whether said legal action has been filed to harass, vex, exert unduepressure or stifle such legal recourses of the person complaining of or enforcing theprovisions of the Act.75 Citizens or government officials seeking to enforce theprovisions of the act therefore need not worry about the common tactic in the

Philippines of counter-suits that are intended to harass and/or deplete theresources of the person seeking to enforce the law.

The Clean Water Act (Republic Act No. 9275) is likewise creative. It requires thedesignation of certain areas as water quality management areas using appropriatephysiographic units such as watershed, river basins or water resources regions. Saidmanagement areas shall have similar hydrological, hydrogeological, meteorologicalor geographic conditions which affect the physicochemical, biological andbacteriological reactions and diffusions of pollutants in the water bodies, orotherwise share common interest or face similar development programs, prospectsor problems.76 The said management area shall be governed by a multi-sectoral

governing board.

The law also mandates the classification of waters and the designation of non-attainment areas wherein new discharges shall be prohibited unless there is acorresponding reduction in discharges from existing sources.77

Moreover, the law established the National Water Quality Management Fund78 andthe Area Water Quality Management Fund79. The fines and damages awarded by thePollution Adjudication Board and proceeds from the permits issued by Departmentof Environment and Natural Resources in accordance with the act formed part of theNational Water Quality Management Fund. The Area Water Quality Management

Fund shall be financed by the Wastewater Charge System also established under the

74 Ibid.75 Section 43, Republic Act 874976 Section 5, Republic Act 927577 Section 6, Republic Act 927578 Section 9, Republic Act 927579 Section 10, Republic Act 9275



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Act. Under the Wastewater Charge system, dischargers of wastewater shall becharged a fee based on the net waste load and the type of wastewater.

The law then provides incentives to local governments, water districts or privateentities that develop or undertake an effective water quality management, or

actively participate in any program geared towards the promotion of the same80

andrewards individuals, organizations and entities that have undertaken outstandingand innovative projects, technologies, processes and techniques or activities inwater quality management.81

Challenges

Overall, Philippine environmental legislation has progressed well. There arehowever, challenges that the Philippines still face.

First, despite the historical and economic significance of land ownership, and

despite the impact of current ownership patterns and use on the environment, thereis still no major legislation that addresses the issue of land use.

Second, the demand of economic development continues to put pressure on theenvironment. Mining, for example, can significantly contribute to strengthening thePhilippine economy. But mining causes so much environmental problems.“Tremendous amount of mine wastes and tailings are generated by mineral

extraction, which are carried to rivers and into the seas. In 1991, mines wastesreached as high as 47.44 million metric tons and mine tailings, 42.70 million metrictons.”82 The environmental impact of the mining industry will be a major challengeespecially since the “new Mining Code provides impetus for its productive

potential.”83

Third, the government still does not display the political will to make all theenvironmental laws effective. In fact, the World Bank observes that –

priorities change each time a new government is elected. This leads todiscontinuities and programmatic break-down in bureaucraticagendas. In addition, a pervasive culture of political patronage ingovernment agencies is seen as a significant obstacle to the systematicimplementation of regulations, and to improving the quality ofenvironmental governance.

Moreover, it has been observed that the Department of Environment and NaturalResources (DENR), the Philippines’ lead agency in environmental protection, has

80 Section 26, Republic Act 927581 Section 25, Republic Act 927582 Magallona, supra fn 2583 Ibid.



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consistently showed its bias for promoting the utilization of natural resourcesrather than protecting and conserving them84.

Fourth, because control over resources is a strategy for maintaining politicalcontrol, top officials of the DENR have been appointed not on the basis of their

qualification and track record but in view of the appointees’ perceived closeness tothe appointing power85. Consequently, officials serve to please the appointing poweror his/her perceived political allies rather than implement the law. Interviews withseveral regional directors of the Environmental Management Bureau confirmed thatgovernment officials connected with the incumbent administration would often callthem to favor an environmental law violator whenever the Bureau’s inspectors

chance upon a clear violation of environmental laws86 . One even quipped,“everything in the Philippines is political.”

Fifth, local governments are expected by many of the environmental laws to take thelead role in formulating policies as well as enforcing the law. Local government

leadership however is hampered by a “lukewarm attitude” 87 , bureaucraticcomplexities and conflicts on the ground88 and lack of capacity89 and lack ofresources. As a result, despite the NIPAS Act, for example, at least half the identifiedprotected areas still have no Protected Area Management Boards (PAMBs)90 Likewise, years after the passage of the Ecological Solid Waste Management Act of2000, only nine out of 117 cities and 46 out of 1500 municipalities have preparedand submitted their ten-year plans to the National Solid Waste ManagementCommission for review91.Finally, despite the legal mechanisms that allow citizens’ participation in policy

making, this has so far been ineffective. As of 1995, there were about 60,000 non-governmental institutions—50,000 NGOs and 10,000 People’s Organizations (POs)

in the Philippines. About 3,000 to 5,000, of these are development oriented and asmall percentage of these are devoted solely to the environment.92 But suchorganizations cannot fully participate if they do not have timely and accurate

84 Antonio G.M. La Vina, Re-Thinking Philippine Environmental Institutions: Do We Need toReallocate Mandates, Powers, and Functions?, Draft Institutional Analysis Report as of September 28,2008 (not for attribution; for discussion purposes only), page 35,http:??siteresources.worldbank.org/INTPHILIPPINES/Resoources/WBCEAInstitutionalAnalysisSept 28.pdf.85 Ibid.86 Formal and informal interviews with several Regional Directors of the Environmental Management

Bureau were conducted between January to February 20, 2013. Due to the possible repercussion ontheir office however, all these directors have requested that their names and identities be withheld.87 La Vinia, fn 8588 World Bank. Philippine Environment Monitor 2004. Available athttp://siteresources.worldbank.org/INTPHILIPPINES/Resources/51-56-ChallengesETC.pdf 89 Ibid. See also La Vina, fn 8590 WB, fn 35, p1291 WB, supra note 44; p19

92 La Vina, fn 85

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information on the environment. It has been reported that not only does the countrylack sufficient information and data about the environment, there is eveninadequate management, dissemination and sharing of the little data that thegovernment has.93

III. Judicial Response

Judicial Initiatives

Sometime after the EDSA revolution, a group of minors, represented and joined bytheir parents, filed a class suit for themselves and for others of their generation andfuture generations to stop the continuing issuance of Timber License Agreementsthat authorized the cutting of trees in the country’s remaining forests. Invoking their constitutional right to a balanced and healthful ecology, the petitioners in Oposa v

Factoran (G.R. No. 101083) prayed that all Timber Licensing Agreements becancelled and that future issuances of the same be enjoined. On July 30, 1993, the

Philippine Supreme Court took this opportunity to declare that the right of a personto a balanced and healthful ecology stated in the Constitution’s declaration of

Principles and State Policies (Section 16, Article II, Philippine Constitution) is alegally enforceable one. Moreover, the Court recognized the right of children to suefor themselves and for generations yet to come for the enforcement of such right.With such a declaration, the Philippine Supreme Court liberalized the rule onstanding in environmental cases. Although it refused to enjoin the issuance oftimber license agreements, it nevertheless opened the gates for people to make useof the courts to enforce environmental rights.

Fifteen years later or in January of 2008, the Supreme Court designated special

courts to hear, try and decide environmental cases.94 In 2010, the Judiciary pushedits environmental agenda even further. Using its Constitutional power to“[p]romulgate rules concerning the protection and enforcement of constitutional

rights, pleadings, practice, and procedure in all courts”95 it promulgated the Rules ofProcedure in Environmental Cases to:

(a) To protect and advance the constitutional right of thepeople to a balanced and healthful ecology;

(b) To provide a simplified, speedy and inexpensiveprocedure for the enforcement of environmental rights

and duties recognized under the Constitution, existinglaws, rules and regulations, and internationalagreements;

93 Ibid.94 Administrative Order 23-2008, Philippine Supreme Court.95 1987 Constitution of the Republic of the Philippines, art. VIII, sec. 5.



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(c) To introduce and adopt innovations and best practicesensuring the effective enforcement of remedies andredress for violation of environmental laws; and

(d) To enable the courts to monitor and exact compliance

with orders and judgments in environmental cases.96

Pursuant to these objectives, the said rules re-affirmed the Oposa doctrine that“liberalizes standing for all cases filed enforcing environmental laws and collapses

the traditional rule on personal and direct interest, on the principle that humans arestewards of nature.”

To ensure the speedy disposition of environmental cases, the rules requirecontinuous trial periods. If it involves a civil case, the period of trial should notexceed two months from the date of the issuance of the pre-trial order unless priorpermission for extension of the trial period is obtained from the Supreme Court. 97 If

it involves a criminal case, the period should not exceed 3 months.98 These aresignificant deadlines considering trial of cases in the Philippines could take as longas 10 years or longer.99

It also provides for the following special remedies:

a. a Temporary Environmental Protection Order100 which may be issued bythe Court if it appears from the verified complaint that the matter is ofextreme urgency and the applicant will suffer grave injustice andirreparable injury;

b. a permanent Environmental Protection Order which may be issued if,

after trial, the court finds that the act complained of must be permanentlyenjoined

c. the writ of continuing mandamus directing the performance of acts whichshall be effective until judgment is fully satisfied101 which may be issued ifthe court finds a need to continuously monitor compliance with itsorder102

d. the Writ of Kalikasan (nature) which may be issued when a constitutionalright to a balanced and healthful ecology is violated, or threatened withviolation by an unlawful act or omission of a public official or employee,or private individual or entity, involving environmental damage of such

96 Rule 1, Section 3,Rules of Procedure for Environmental Cases97 Id . rule 4, section 1.98 Id. rule 17, section 1.99 The author, for example, is involved in a medical malpractice suit where trial took eleven years tofinish. The case has been submitted for decision in 2011 and yet no Decision has yet beenpromulgated.100 Id. rule 2, section 8.101 Id. rule 5, Section 3; see also rule 8102 See Annotation to the Rules of Procedure for Environmental Cases



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magnitude as to prejudice the life, health or property of inhabitants intwo or more cities or provinces103

Following the lead of the Clean Air Act, the rules recognized the possibility of a legalaction filed to harass, vex, exert undue pressure or stifle any legal recourse that any

person, institution or the government has taken or may take in the enforcement ofenvironmental laws, protection of the environment or assertion of environmentalrights (which the rules define as SLAPP or Strategic Lawsuit Against PublicParticipation). It therefore contains provisions on how such a legal action shall betreated under the rules104.

Limitations of Judicial action

While the initiatives of the Judiciary are laudable, it can only do so much. Under thePhilippine Constitution, the Judicial Branch is empowered only to settle actual cases

or controversies of the justiciable sort. As the Philippine Supreme Court itselfdeclared:

"X x x. Judicial power is limited to the decision of actual cases and

controversies. The authority to pass on the validity of statutes is

incidental to the decision of such cases where conflicting claims under

the Constitution and under a legislative act assailed as contrary to the

Constitution are raised. It is legitimate only in the last resort, and as

necessity in the determination of real, earnest, and vital controversy

between litigants." 105

Thus, despite the noble intention of the Court to be more active in environmentalprotection, the constitutional limitation on its powers prevent it from playing anyother role but to adjudicate actual cases or controversies. Consequently, unlessthere is a litigant who would actually file a case in court, the judiciary would bepowerless to stop environmental degradation. Though there is no national statisticavailable, the situation in the province of Palawan demonstrates the point. In thesaid province, it has been reported that there were 14,000 known incidents offishery laws violations within a four-year period. Of that number, only 33 casesreached the court and this resulted in only five convictions. 106 In Palawan therefore,the courts could only act in 33 out of the 14,000 known incidents of fishery lawsviolation. Although the environmental initiatives taken by the court could increase

the conviction rate, still it could exercise judicial power in only .02 percent of knownviolations of fisheries law. Clearly, unless people invoke judicial power, the Judiciarywould be powerless to stop environmental degradation.

103 Rule 7 of Rules of Procedure for Environmental Cases104 Id . rule 6.105 PACU vs. Secretary of Education, 97 Phil 806106 La Vina, supra note 85.



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Moreover, a recently held panel discussion of Justices of the Court of Appealsrevealed potential clashes between the Judiciary on the one hand, and the Executiveor Legislative Branches, on the other, may be an inevitable result of judicialenvironmental activism. In the said discussion, the Presiding Justice of the Court of

Appeals noted that despite the rule allowing the court to issue a writ of continuingmandamus, there are certain acts that the Judiciary simply cannot compel theExecutive or the Legislative to do. In the said discussion, Presiding Justice Acostacited the case of Metro Manila Development Authority v Concerned Residents ofManila Bay (G.R. No. 171947-48, December 18, 2008) where for the first time, thePhilippine Supreme Court issued a continuing mandamus to compel the governmentagencies to perform their tasks and clean up Manila Bay. Presiding Justice Acostapointed out that –

Now, going back to my concern, it is the same concern that the courthad when it did not specify in its dispositive portion, that it did not

want to encroach on the principle of separation of powers. Like forexample, cleaning up of Manila Bay, it needs a lot of money and theCourt cannot order Congress to approve money for that. So, if thepublic officials in charge of cleaning up of Manila Bay just say thatthere is not enough funds, how can we enforce the order of thecourt?107

Indeed, while the Court in the said case may hold the officials in charge of the cleanup of Manila Bay in contempt for refusing to follow the order of the Court, still, itcannot compel the Legislature to appropriate funds for such a huge undertaking.The actual clean up of the bay may therefore never be realized and the Court would

be powerless to do anything about it.

In a similar discussion108, another Justice of the Court of Appeals pointed out asimilar concern. Said the Justice –

Restoration pwedeng i-ano sa relief (restoration can be included in therelief)? We know that mining companies destroy the mountains. How can weinclude in the relief to restore mountains? The direction of the SupremeCourt is for the justices to be environmentalists. How about the executivedepartment that issue the mining permits as to exploitation? Wouldn’t we

have a problem between the executive and the judiciary at this point?

107 Transcript of the Proceedings, Panel Discussion on Selected Features of the Rules of Procedurefor Environmental Cases. Part of the Capacity Building on Environmental Laws and the Rules ofProcedure for Environmental Cases for the Court of Appeals [Batch 2] held on January 9-11, 2013 atPanglao, Bohol, Philippines at page 5108 Transcript of Proceedings. Panel Discussion on Selected Features of the Rules of Procedure forEnvironmental Cases. Part of the Capacity Building on Environmental Laws and the Rules ofProcedure for Environmental Cases for the Court of Appeals [Batch 1] held on November 7-9, 2012 atPanglao, Bohol, Philippines



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Discretion-policy consideration? We invite foreign investors to come but wehave to preserve the environment. Why don’t we direct our advocacy tomining companies so we won’t have problem in the court on the writ of

kalikasan?

Is it desirable to have the courts usurp executive or legislative power for the sake ofthe environment? This paper does not intend to answer that question. It merelywishes to point out that the courts, by themselves, face many constraints. Despite itslaudable efforts therefore, it would be foolish to believe that the newfoundenvironmentalism of the Supreme Court, by itself, would stop the environmentaldegradation in the Philippines.

IV. Responding to Judicial Initiatives with Environmental Law Education

The initiative of the Philippine Supreme Court will acquire more significance if other

sectors of Philippine society shall respond to these initiatives with equal vigor andcommitment. Law schools in particular, could play a significant role because of itsestablished role as “gatekeeper” of the law profession and “molder of the professionand its mores.”109

The more desirable response of law schools would be the recruitment, developmentand training of lawyer-environmental advocates who could not only invoke judicialpower, but could also use their special education and training to protect theenvironment. “Lawyers are the mechanics of the legal system. They drive and helpfine-tune the engine, knowing that if it is not in working condition, it will not reachits destination. Lawyers are specially trained in the legal system's goals and have the

greatest expertise about its operation.”110 Thus, even while courts cannot doanything but wait, the lawyers can strongly influence the creation and promulgationof statutes and participate in its effective enforcement.

That a lawyer can be an excellent environmental advocate however, does not meanthat all lawyers should be one or that law schools should only seek to trainenvironmental advocates. “It must be recognized that, as matters stand, even most

of those idealists who are drawn to law school because of a desire to work for ‘social

justice’ will find it impossible to do so unless they are independently wealthy, so few

are the positions which will pay a reasonably acceptable salary for such work.” 111 Thus, while law schools may prepare students to become environmental advocates,

they have to recognize that economic considerations may drive lawyers to work

109 Hellman, Lawrence, K. Considering the Future of Legal Education: Law Schools and Social Justice. 29J. Legal Education. 170 1977-1978: 170. Downloaded from HeinOnline (http://heinonline.org) April8, 2013110 Fred C. Zacharias, The Lawyer's Role in a Contemporary Democracy, Promoting Social Change and

Political Values, True Confessions About the Role of Lawyers in a Democracy , 77 Fordham L. Rev. 1591(2009). Available at: http://ir.lawnet.fordham.edu/flr/vol77/iss4/16.111 Hellman, Lawrence, K., supra note 16.

http://heinonline.org/






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elsewhere. Even good intentioned people have to eat and law schools cannotdeprive these people of the professional training that they need. Nonetheless lawschools also need to prepare those who do decide to become environmentaladvocates. Environmental lawyering has become prestigious and profitable in othercountries and Philippine law schools must provide venues for their students to learn

the experiences of these lawyers and law firms.

It must also be recognized that lawyers are duty bound to represent clients,regardless of how they view the environment. As Professor Zacharias notes, “The

lawyer's role as a client advocate sometimes actually prevents lawyers from activelypromoting important political and social values..” 112 This is not necessarilyundesirable. Without lawyers representing both sides of an issue, litigation, wouldnot be available as a means of allowing the better idea to prevail. “Important

systemic values underlying both the legal and political processes are furthered bythe availability of a profession of trained attorneys capable of giving representationto any lawful cause.” 113 Responding to the Supreme Court’s environmental

initiatives also involves preparing lawyers to be ready to represent even those whohave little respect for the environment and yet use the opportunity to improveenvironmental laws or at least counsel their clients to choose the environmental-friendly alternatives. Towards this end, law schools must be able to mold lawyerswho appreciate the moral foundation of value neutrality and absolute client loyaltyin representing clients, yet capable of understanding also that in playing other roles– lawyer-judge, lawyer-legislator, lawyer-leader, lawyer-adviser, lawyer-citizen --they should recognize every person’s constitutional right to a balanced and healthful

ecology. Responding to judicial initiatives therefore require that law schools be ableto produce lawyers who are capable of representing environmental law violatorswith passion and zeal, yet remain environmentalists and constitutionalists in

performing their duties as lawyers.

Towards this end, law schools must be able to provide venues for law students toacquire environmental knowledge that is not limited to the letters of environmentallaw. According to Peden “one of the functions of our law schools is to awaken every

student to the need (a) to distinguish between goals and means of achievement; (b)to consider the law in its social context, and whether the law meets the needs ofsociety, and to be aware that empirical data may be necessary in order to answerthis question; and (c) to acquire lawyer-like skills to deal with problems such asobtaining the passage of legislation, negotiating business transactions and politicalarrangements, as well as the traditional skills of drafting and advocacy” 114

Environmental courses should therefore not be limited to the study of the letter ofthe law and the cases that interpret them. Instead, they should be geared towards

112 Ibid, at page 1599.113 Hellman, Lawrence, K., supra 16.114 Peden, John, R. Goals for Legal Education. 24 J. Legal Educ. 379 1971-1972: 381. Downloaded fromHeinOnline (http://heinonline.org) Apr 11 00:26:11 2013







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examining the purposes of the law, the manner by which they are enforced and howeffective they are in achieving their goals, the social context in which these laws areenforced and the economic, political, social and environmental consequences oftheir success or failure.

V. A Proposed Course in Response to the Judicial Initiatives

There are already a number of lawyers that are actively engaged in environmentallaw and they recognize the need for higher education.115 There are many morelawyers that may be recruited and developed in the environmental field through anenvironmental law program. Thus, in order to further develop lawyers already inthe field and those that may still be recruited to play a more active role inenvironmental protection, the researcher proposes an LLM Program for Filipinolawyers. The proposed program is built on four key objectives

First, the program will build on the JD training of Filipino lawyers and help thoselawyers develop an expertise in Environmental Law. The proposed LLM programmust be based on a strong legal training regime that would provide lawyers with aworking knowledge of economics and ecology that would enable them to use andcritique the scientific method and the application of technology, appreciate andunderstand the different economic models and how environmental law and policyaffects and is affected by economic demands of a society, and how the law canhandle both scientific uncertainties and economic demands. Building on their legaltraining, Filipino lawyers in this program would learn to find, interpret, describeand manipulate current and important historical environmental law and policy in

the Philippines and other jurisdictions. These lawyers, once trained through thisprogram, would be able to identify, define and engage institutions and individualswithin the legal process, appropriate administrative agencies, courts, and othergovernmental entities, as well as outside forces, that shape and impact developmentof environmental law and policy

Second, the proposed program will take advantage of legal mechanisms that allowfor meaningful people’s participation in policy making and in monitoring and

enforcement of environmental law. As earlier stated, there are several laws thatcreated mechanisms for peoples participation (the NIPAS Act for example, createdthe Protected Area Management Board) and as earlier stated, many of these multi-

sectoral bodies have not been established or are still in their infancy. The LLM

115 In an interview with Atty. Jonathan Bulos, Regional Director of the Environmental Bureau ofRegion 6, Atty. Bulos told the author that nothing in Law School prepared him for his job. He says hewishes that law school should allow specialization in environmental law so that lawyers in theenvironmental field like him would be better prepared. Likewise, in a separate interview, Atty.Maripaz Luna of the NGO Pusod (umbilical cord), Inc. expressed her wish that law schools wouldprovide specialized training in environmental law that would prepare lawyers like her to practiceenvironmental law.



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program must take advantage of this opportunity to provide consultancy servicesand/or establish externships that would allow the lawyers in the program todirectly and immediately contribute to improving and enforcing environmental law.Such direct participation shall inculcate the values of diligence and selflessness andprovide venues for lawyers to learn to work with professionals from other

disciplines so that they may be able to diagnose environmental problems, identifysolutions, identify, convene and coordinate teams of legal and technicalprofessionals, coordinate strategy and implement actions. Participants of thisprogram would be ready to continue working for these multi-sectoral bodies evenafter graduation.

Third, the proposed program shall provide lawyers with practical exercises andhands on training in issue spotting, pleading writing, evidence gathering,management and presentation, and oral advocacy. Participants in the programwould be able to explain complicated, scientific and technical concepts in a mannerthat would be easily understood by judges, policy-makers and stakeholders.

Finally, the proposed program shall develop creative and scholarly thinkers inenvironmental law who shall not only add to the growing literature on Philippineenvironmental law and policy, but who will actually be able to propose and enactstrong environmental laws, policies, rules and processes.

CONCLUSION

Despite the many challenges to its democracy, the Philippines has come up withgood environmental laws that may serve to protect its rich natural resources. It now

has an “environmental activist” judiciary that has displayed its willingness andresolve to protect the environment. The opportunity is therefore ripe to encourage,develop and train more lawyers to take on the cause of the environment. It is also anopportunity for Filipino lawyers who have long taken on the cause of theenvironment to transform their stories of victory and defeat into lessons from whichpresent and future generations can learn.

An LLM program on Environmental law will help recruit new environmentallawyers while providing a venue for those already in the practice of environmentallaw to filter the lessons their experiences have taught them. An LLM program canfurther raise the level of litigation and debate in the country so that more, newer,

and better ideas in resource management and protection will find its way not only inthe halls of the academe, but in the halls of congress and in the courts as well.



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APPENDIX A

A Brief Summary of Significant Environmental Laws in the Philippines

(a) the Revised Forestry Code (Presidential Decree No. 705)

In 1975, then President Ferdinand Marcos recognized the need to protect,rehabilitate and develop forestlands to ensure the continuity of their productivecondition116. He thus promulgated117 the Revised Forestry Code to govern theutilization and management of forestlands and forest products. In order to ensurethe continued productivity of forest lands, the Decree called for the classification oflands of the public domain and the clear delineation of forestlands from other typesof land.118 Clear boundaries would then be marked on the ground119 and any activitywithin such forest lands can only be performed by obtaining license agreements,licenses, leases or permits for the exploitation and occupation of forestlands, and

the establishment of wood or forest products processing plant. Such licenses orpermits shall only be granted if their “utilization, exploitation, occupation or

possession thereof, or the conduct of any activity therein”, would bring about the“optimum benefits to the development and progress of the country, and the public

welfare, without impairment or with the least injury to its resources…”120 The Codealso contains provisions on reforestation and protection of forests.

To protect forest lands, the Decree prohibited the following acts:

Section Acts Prohibited

Section 68 Cutting, gathering or collecting timber or

other products without a licenseSection 69 entering and occupying or possessing, or

making kaingin for his own private useor for others any forest land withoutauthority under a license agreement,lease, license or permit, or in destroyingin any manner such forest land or partthereof, or causing any damage to thetimber stand and other products andforest growths found therein, orassisting, aiding or abetting any other

116 Whereas Clauses of Philippine Forestry Code (Presidential Decree 705).117 By virtue of Amendment No. 6 under the 1973 Constitution, President Marcosexercised legislative powers.118 Sections 13-16 of Philippine Forestry Code.119 Id. section 17.120 Id. section 19.



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person to do so, or setting a fire, ornegligently permitting a fire to be set inany forest land.

Section 70 grazing or causing to graze livestock inforest lands, grazing lands and alienable

and disposable lands which have not asyet been disposed of in accordance withthe Public Land Act without authorityunder a license or permit

Section 71 occupying for any length of time anyportion of the national parks systemwithout a permit, or cutting, destroying,damaging or removing timber or anyspecies of vegetation or forest cover andother natural resources found therein, ormutilating, defacing or destroying

objects of natural beauty or of scenicvalue within areas in the national parkssystem; or hunting, capturing or killingany kind of bird, fish or wild animal lifewithin any area in the national parkssystem

Section 79 selling or offering for sale any log,lumber, plywood or other manufacturedwood products in the international ordomestic market without complyingwith grading rules established by the

Government

(b) the Marine Pollution Decree (Presidential Decree No. 979)

Following the Forestry Code, Presidential Decree 979 or the Marine PollutionDecree was promulgated in 1976 to protect the marine environment and the livingorganism it supports121. Recognizing that the capacity of the sea to assimilate wastesand render them harmless, and its ability to regenerate natural resources is limited,the Decree made it unlawful for any person to:

a. discharge, dump or suffer, permit the discharge of oil, noxious gaseous andliquid substances and other harmful substances from or out of any ship,vessel, barge, or any other floating craft, or other man-made structures at

121 Whereas Clauses of P.D. 979.



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sea, by any method, means or manner, into or upon the territorial and inlandnavigable waters of the Philippines;

b. throw, discharge or deposit, dump, or cause suffer or procure to be thrown,discharged, or deposited either from or out of any ship, barge, or otherfloating craft of vessel of any kind, or from the shore, wharf, manufacturing

establishment, or mill of any kind, any refuse matter of any kind ordescription whatever other than that flowing from streets and sewers andpassing therefrom in a liquid state into tributary of any navigable water fromwhich the same shall float or be washed into such navigable water; and

c. deposit or cause, suffer or procure to be deposited material of any kind inany place on the bank of any navigable water or on the bank of any tributaryof any navigable water, where the same shall be liable to be washed into suchnavigable water, either by ordinary or high tides, or by storms or floods, orotherwise, whereby navigation shall or may be impeded or obstructed orincreased the level of pollution of such water122.

(c) the Water Code (Presidential Decree No. 1067)

In the same year, P.D. 1067 was promulgated to consolidate the laws governing theownership, appropriation, utilization, exploitation, development, conservation andprotection of water resources and to cope with the increasing scarcity of water andchanging patterns of water use. The Decree reiterates the constitutional principlethat all waters belong to the State.123 Thus, under the Code, subject only to certaindefined exceptions124, no person or entity may appropriate water from naturalsources without a water right granted by the government. 125 Preference in thedevelopment of water resources shall be based on security of the State, multiple use,

beneficial effects, adverse effects and cost of development.126 The Code alsoprovides for measures that would conserve and protect waters, watersheds andrelated land resources in the development and utilization of water resources127 anddefines certain prohibited acts and the penalties therefor.128

(d) the Philippine Environmental Code (Presidential Decree No. 1152)

In 1977, The Philippine Environmental Code (P.D. 1152) was promulgated toestablish a comprehensive program for environmental protection and management.

122 Id . section 4.

123 P.D. 1067, articles 5 -6.124 See id. article 14.125 Id. article 13.126 Id. 127 See chapter VI of P.D. 1067.128 See id. chapter VIII.



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It contained provisions on air quality management (Title I), water qualitymanagement (Title II), land use management (Title III), natural resourcesmanagement and conservation129 (Title IV), and solid waste management (Title V).Many of the provisions of this Code however, have been superseded by newer laws.

(e) Philippine Environmental Policy (P.D. 1151) and the Environmental ImpactStatement (EIS) System (Presidential Decree No. 1586)

Following up on the Environmental Code, the President of the Philippinespromulgated within the same year Presidential Decree 1151 to declare the nation’s

environmental policies and goals. The Decree declared that it is the nation’s

environmental policy:

(d) to create, develop, maintain and improve conditions under which manand nature can thrive in productive and enjoyable harmony with eachother;

(e) to fulfill the social, economic and other requirements of present andfuture generations of Filipinos; and,

(f) to insure the attainment of an environmental quality that is conducive toa life of dignity and well-being130

The Decree also initially established an Environmental Impact Statement (EIS)System wherein every person who shall undertake an activity or project that wouldsignificantly affect the quality of the environment is required to prepare and file anEnvironmental Impact Statement that would detail

(a) the environmental impact of the proposed action, project or undertaking(b) any adverse environmental effect which cannot be avoided should the

proposal be implemented;(c) alternative to the proposed action;(d) a determination that the short-term uses of the resources of the

environment are consistent with the maintenance and enhancement of the long-term productivity of the same; and

(e) whenever a proposal involve the use of depletable or non-renewableresources, a finding must be made that such use and commitment are warranted.

To further strengthen the EIS system and ensure that the exigencies of socio-economic undertakings would be reconciled with the requirements of

129 Title IV included Chapters on Fisheries and Aquatic Resources, Wildlife, Forestryand Soil Conservation, Flood Control and Natural Calamities, Energy Development,Surface and Ground Waters, and Mineral Resources.130 Section 1 of P.D. 1151.



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environmental quality131, P.D. 1586 was promulgated in 1978. Under this law, thePresident is empowered to declare certain projects, undertakings or areas in thecountry as environmentally critical. Once an activity or area is so declared, noperson, partnership or corporation may undertake or operate any such declaredenvironmentally critical project, or undertake any activity within such

environmentally critical area, unless he/it secures an Environmental ComplianceCertificate132. It also penalizes any person who fails to secure an EnvironmentalCompliance Certificate prior to undertaking any environmentally critical activity orproject or performing any activity in an environmentally critical area or violatingthe standards, rules and regulations issued pursuant to the compliance certificate133.

(f) the Toxic Substances and Hazardous and Nuclear Wastes Control Act (RepublicAct No. 6969)

The Toxic Substances and Hazardous and Nuclear Wastes Control Act (1991)regulates the importation, manufacture, processing, handling, storage,

transportation, sale, distribution, use, and disposal of all chemical substances andmixtures that present unreasonable risk and/or injury to health or the environment.It prohibits the entry, even in transit, of hazardous and nuclear wastes and theirdisposal into the Philippine territorial limits 134 . Consistent with the newConstitution’s declared policies, it provides for public access to “records, reports, orinformation concerning chemical substances and mixtures including safety datasubmitted, data on emission or discharge into the environment..”135 and allots oneseat for an NGO representative in the Inter-Agency Technical Advisory Council136.

(g) the People’s Small-Scale Mining Act (Republic Act No. 7076)

The Small-Scale Mining Act (1991) carries out the State’s policy of promoting small-scale mining activities in order to generate more employment opportunities andprovide an equitable sharing of the nation’s wealth137. The law establishes aPeople’s Small Scale Mining138 Program, “designed to achieve an orderly, systematic

and rational scheme for the small-scale development and utilization of mineralresources in certain mineral areas in order to address the social, economic,technical, and environmental problems connected with small-scale mining

131 Whereas Clauses of P.D. 1586.132 Section 4 of P.D. 1586.133 Id. section 9.134 Section 2 of Republic Act 6969.135 Id . section 12.136 Id . section 7.137 Section 2 of Republic Act 7076.138 Small scale mining is defined in the law as “mining activities which rely heavilyon manual labor using simple implements and methods and do not use explosives orheavy mining equipment ”.



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activities.”139 Consistent with the declared constitutional state policies, the lawprovides that no ancestral lands shall be declared as a small-scale mining areawithout the prior consent of the cultural communities concerned140. It also allotsseats to local governments and to environmental NGOs in the Mining RegulatoryBoard141, which shall be the main implementing agency of the Act 142.

(h) the National Integrated Protected Areas System (NIPAS) Act (Republic Act No.7586)

The National Integrated Protected Areas System (NIPAS) Act (1992) establishes asystem that “shall encompass outstanding remarkable areas and biologicallyimportant public lands that are habitats of rare and endangered species of plantsand animals, biogeographic zones and related ecosystems, whether terrestrial,wetland or marine, all of which shall be designated as protected areas.” 143 The actclassifies protected areas into 7 distinct categories 144 and provide for theadministration of said protected areas. In order to properly manage these protected

areas, the statute calls for the formulation of a general management strategy thatwould serve as the guide for the creation of individual management plans for eachprotected area. This management planning strategy must promote the adoption andimplementation of innovative management techniques including, if necessary, theconcept of zoning, buffer zone management for multiple use and protection, habitatconservation and rehabilitation, diversity management, community organizing,socioeconomic and scientific researches, site-specific policy development, pestmanagement, and fire control. The law also creates a multi-sectoral managementboard in each protected area that will be in charge of the general administration ofthe protected area in accordance with the management strategy formulated145.

In addition, the law defines certain prohibited acts, which include:

Section Prohibited Acts20 (a) Hunting, destroying, disturbing, or mere

possession of any plants or animals orproducts derived therefrom without apermit from the Management Board

20 (b) Dumping of any waste productsdetrimental to the protected area, or tothe plants and animals or inhabitants

139 Section 4 of Republic Act 7076.140 Id . section 7.141 Id. section 25.142 Id . section 24.143 Section 2 of Republic Act 7586.144 Id . section 3.145 Id . section 11.



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therein

20 (c) Use of any motorized equipment withouta permit from the Management Board

20 (d) Mutilating, defacing or destroyingobjects of natural beauty, or objects of

interest to cultural communities (ofscenic value)

20 (e) Damaging and leaving roads and trails ina damaged condition;

20 (f) Squatting, mineral locating, or otherwiseoccupying any land

20 (g) Constructing or maintaining any kind ofstructure, fence or enclosures,conducting any business enterprisewithout a permit

20 (h) Leaving in exposed or unsanitary

conditions refuse or debris, ordepositing in ground or in bodies ofwater

20 (i) Altering, removing destroying ordefacing boundary marks or signs.

(i) the Philippine Mining Act (Republic Act No. 7942)

The Mining Act (1995) mandates the rational exploration, development, utilizationand conservation of mineral resources through the combined efforts of governmentand the private sector146. It sets the modes through which the private sector canengage in mineral development, namely: mineral production sharing agreements,co-production agreements, joint venture agreements147 or through financial ortechnical assistance agreements (FTAAs)148. Under the law, a party to a mineralagreement or financial or technical assistance agreement must include in its workprogram an environmental protection and enhancement program149 that mustinclude rehabilitation, regeneration, revegetation and reforestation of mineralizedareas, slope stabilization of mined-out and tailings covered areas, aquaculture,watershed development and water conservation; and socioeconomic development . As an incentive to install pollution control devices, the law shall not consider the

146 Section 2 of Republic Act 7942.147 Id. section 26.148 Id . chapter VI.149 Id . section 69.



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installation or construction of such devices as an improvement on the land, andhence, such devices shall not be subject to taxes or assessments150.

Moreover, the law defines certain prohibited acts that include:

Section Prohibited ActsSection 101 presenting any false application,

declaration, or evidence to theGovernment or publishing or causing tobe published any prospectus or otherinformation containing any falsestatement relating to mines, miningoperations or mineral agreements,financial or technical assistanceagreements and permits

Section 102 undertaking exploration work without

the necessary exploration permitSection 106 damaging a mine, unlawfully causing

water to run into a mine, or obstructingany shaft or passage to a mine, orrendering useless, damaging ordestroying any machine, appliance,apparatus, rope, chain, tackle, or anyother things used in a mine

Section 108 Willfully violating or grossly neglectingto abide by the terms and conditions ofthe environmental compliance certificate

which causes environmental damagethrough pollution

(j) the Philippine Fisheries Code (Republic Act No. 8550);

The Fisheries Code (1998) seeks to ensure the rational and sustainabledevelopment of fishery and aquatic resources in Philippine waters, and limits accessthereto to Filipino citizens. It gives preferential treatment to municipal fisherfolk inthe grant of privileges in municipal waters151. The Code establishes a multi-sectoralNational Fisheries and Aquatic Resources Management Council (withrepresentatives from the fisherfolk and fishworkers, commercial fishing andaquaculture operators’ representatives and NGOs involved in fisheries) who shall

assist in the formulation of national policies for the protection, sustainable

150 Id . section 91.151 Section 21, Article I of the Philippine Fisheries Code.



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development and management of fishery and aquatic resources.152 It similarlycreates a local council who would perform similar functions at the local level153.

Among others, the Fisheries Code prohibits the following acts:

Section Prohibited ActsSection 86 exploiting, occupying, producing,

breeding, culturing, capturing orgathering fish, fry or fingerlings of anyfishery species or fishery products, orengaging in any fishery activity inPhilippine waters without a license,lease or permit

Engaging in commercial fishing inmunicipal water of persons not listed inthe registry of municipal fisherfolk or in

fishery management areas declared to beoverexploited

Section 87 Poaching in Philippine watersSection 88 Fishing through the use of explosives,

noxious or poisonous substances and/orelectricity

Section 91 gathering, possessing, selling orexporting ordinary precious and semi-precious corals, whether raw or inprocessed form, except for scientific orresearch purposes.

Section 92 fishing with gear method that destroyscoral reefs, seagrass beds, and otherfishery marine life habitat

Engaging in "Muro-Ami" and any of itsvariation, and such similar gear andmethods that require diving, otherphysical or mechanical acts to pound thecoral reefs and other habitat to entrap,gather or catch fish and other fisheryspecies

gathering, selling or exporting whitesand, silica, pebbles and any othersubstances which make up any marine

152 See id . sections 70- 72.153 See id . sections 73-75.



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habitat.

Section 94 Converting mangroves into fishponds orfor any other purpose

Section 96 Fishing is fishery reserves, refuge andsanctuaries

Section 97 Fishing or taking rare, threatened orendangered species

(k) the Clean Air Act (Republic Act No. 8749)

The Clean Air Act (1999) calls for the designation of airsheds wherein areas withsimilar climate, meteorology and topology, or those which share common interest orface similar development programs, prospects or problems shall be considered asone unit. These airsheds shall serve as the basic unit for air quality management 154.The law requires the preparation of an Air Quality Improvement Framework and an

Air Quality Control Action Plan which shall prescribe the emission reduction goalsusing permissible standards, control strategies and control measures to beundertaken within a specified time period, including cost-effective use of economicincentives, management strategies, collective actions, and environmental educationand information; and sets national ambient air quality and emission standards. 155 Pursuant to the polluters pay principle, the law establishes an emission chargesystem that would charge industrial dischargers and motor vehicle dischargersemission fees that shall be based on the volume and toxicity of the discharge 156. Italso provided tax incentives to industries that shall install pollution control devicesor retrofits their existing facilities with mechanisms that reduce pollution157.

The Clean Air Act is also the first environmental legislation in the Philippines thatprovides for citizen’s suits. Thus under the law, any citizen may file the appropriate

administrative, civil or criminal action against:

(a) Any person who violates or fails to comply with the provisions of the Actor its implementing rules and regulations; or(b) The Department or other implementing agencies with respect to orders,rules and regulations issued inconsistent with the Act; and/or(c) Any public officer who willfully or grossly neglects the performance of anact specifically enjoined as a duty by the Act or its implementing rules andregulations; or abuses his authority in the performance of his duty; or, in anymanner, improperly performs his duties under the Act or its implementing

154 Section 9 of the Clean Air Act.155 Id. section 7.156 Id. section 13.157 Id.



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rules and regulations: Provided, however , That no suit can be filed until thirty-day (30) notice has been taken thereon158

Moreover, the law exempts anyone availing of the citizen’s suit provision from

paying filing fees, except fees for actions not capable of pecuniary estimations or

from posting injunction bonds upon prima facie showing of the non-enforcement ofthe provisions of the act, or violation thereof 159.

The Act likewise protects private persons bringing a citizen’s suit or a public official

implementing the provisions of the Act from suits and strategic legal actions againstpublic participation and enforcement of the act. Thus, under the law, when a suit isbrought against a person who filed an action in accordance with the citizen’s suit

provision of the Act, or against any person, institution or government agency thatimplements the Act, the law makes it a duty of the investigating prosecutor or thecourt, as the case may be, to immediately make a determination within thirty (30)days whether said legal action has been filed to harass, vex, exert undue pressure or

stifle such legal recourses of the person complaining of or enforcing the provisionsof the Act.160

(l) the Ecological Solid Waste Management Act (Republic Act No. 9003)

The Ecological Solid Waste Management Act mandates the preparation of a NationalSolid Waste Management Framework to be prepared by a multi-sectoral NationalSolid Waste Management Commission 161 . At the local level, Solid WasteManagement Boards are established at both the provincial and the city/municipallevel. Plans are to be generated from the municipal level, consolidated at theprovincial level and finally integrated at the national level. Primary responsibility in

implementing these plans are then placed on the local government units.

The law rewards individuals, private organizations and entitles, including non-government organizations, that have undertaken outstanding and innovativeprojects, technologies, processes and techniques or activities in re-use, recycling andreduction162. It also establishes an incentive scheme for the purpose of encouraginglocal government units, enterprises, or private entities, including NGOs, to developor undertake an effective solid waste management, or actively participate in anyprogram geared towards the promotion of the same.163

(n) the Clean Water Act (Republic Act No. 9275)

158 Id. section 41.159 Id. 160 Section 43 of the Ecological Solid Waste Management Act.161 Id . sections 4-5.162 Id. section 45.163 Id.



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The Clean Water Act requires the designation of certain areas as water qualitymanagement areas using appropriate physiographic units such as watershed, riverbasins or water resources regions. Said management areas shall have similarhydrological, hydrogeological, meteorological or geographic conditions which affectthe physicochemical, biological and bacteriological reactions and diffusions of

pollutants in the water bodies, or otherwise share common interest or face similardevelopment programs, prospects or problems.164 The said management area shallbe governed by a multi-sectoral governing board.

The law also mandates the classification of waters and the designation of non-attainment areas wherein new discharges shall be prohibited unless there is acorresponding reduction in discharges from existing sources.165

Moreover, the law established the National Water Quality Management Fund166 andthe Area Water Quality Management Fund167. The fines and damages awarded bythe Pollution Adjudication Board and proceeds from the permits issued by

Department of Environment and Natural Resources in accordance with the act shallform part of the National Water Quality Management Fund. The Area Water QualityManagement Fund shall be financed by the Wastewater Charge System alsoestablished under the Act. Under the Wastewater Charge system, dischargers ofwastewater shall be charged a fee based on the net waste load and the type ofwastewater.

The law then provides incentives to local governments, water districts or privateentities that develop or undertake an effective water quality management, oractively participate in any program geared towards the promotion of the same 168 and rewards individuals, organizations and entities that have undertaken

outstanding and innovative projects, technologies, processes and techniques oractivities in water quality management.169

In addition, the law defined certain prohibited acts, which include:

Section Prohibited Acts

27 (a) Discharging, depositing or causing to bedeposited material of any kind directlyor indirectly into the water bodies oralong the margins of any surface water,where, the same shall be liable to be

164 Section 5 of the Clean Water Act.165 Id. section 6.166 Section 9, Republic Act 9275167 Id. section 10.168 Id. section 26.169 Id. section 25.



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washed into such surface water, eitherby tide action or by storm, floods orotherwise, which could cause waterpollution or impede natural flow in thewater body

27 (b) Discharging, injecting or allowing to seepinto the soil or sub-soil any substance inany form that would pollutegroundwater

27 (c) Operating facilities that dischargeregulated water pollutants without thevalid required permits or after thepermit was revoked for any violation ofany condition therein;

27 (d) Disposal of potentially infectious medicalwaste into sea water by vessels unless

the health or safety of individuals onboard the vessel is threatened by a greatand imminent peril

27 (i) Discharging regulated water pollutantswithout the valid required dischargepermit pursuant to this Act or after thepermit was revoked for any violation ofcondition therein;

27 (o) Directly using booster pumps in thedistribution system or tampering withthe water supply in such a way as to

alter or impair the water quality.29 Non compliance by local government

officials with their action plan



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Appendix B

Brief Description of the Proposed LLM Course for Philippine Lawyers

Introduction to Environmental Law

Course Description:

This is an introductory course that would provide the students with anunderstanding of the unique characteristics of environmental law and its impact onsociety. The course must begin with exercises that allow the students to discover forthemselves the environmental situation in the Philippines. Group discussions willthen be designed to provide the students the opportunity to identify and appreciatethe unique characteristics of this field of law. It shall then provide the students witha general knowledge of the various regulatory tools available and provide the

students an opportunity to analyze such tools.

The following topics must be covered in this course:

I. Philippine Environmental Situation

Students will be asked to find and analyze reports and other materials that willprovide them with a general picture of the current state of the Philippineenvironment. In order to deepen their appreciation of the environmental problemsthat beset the country, they shall also be asked to identify a local environmental

problem in their community and report to the class the nature of the problem, itsimpact on the communities, the governmental and community responses to theproblem. Activities would include writing assignments, class discussions andreports. By analyzing, sharing and discussing actual problems in local communitiesand relating them with national environmental problems, the students will beallowed to identify and appreciate the special and unique characteristics ofenvironmental law.

II. Constitutional Policy and Framework

Students will review constitutional principles and policies that affect environmental

law. Case studies and class discussions will be relied upon to deepen the student’sunderstanding of constitutional principles that impact on the development ofenvironmental law. The article of Former Chief Justice Fernando170 that advocates

170 Chief Justice Enrique Fernando, The Constitution and Environmental Law: The

Relevance of the Malcolm Activist Approach, 69 Philippine Law Journal 117, 126(1994).



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more judicial restraint as well as the opinion of Former Chief Justice Puno 171 thatencourages courts to take a more active stance can be used as take off points fordiscussing constitutional principles that the judicial activism may bring to the fore.

In addition, the cases of Oposa v Factoran172 and MMDA vs Concerned Residents of

Manila bay173

shall be analyzed and compared and the opinion of Dante Gatmaytanentitled “Judicial Restraint and the Enforcement of Environmental Rights in the

Philippines”174 shall be considered in discussing the ideal role of the judiciary, andof lawyers, in environmental protection.

III. Regulatory Tools and Mechanisms

To understand the different regulatory tools that environmental law practitionersmay use, students will learn the unique characteristics of environmental problemsand issues. Issues like scientific uncertainty, tragedy of the commons, collectiveaction and free riders, and other issues shall be introduced to help the students

appreciate the uniqueness of environmental problems and issues and the need touse different regulatory tools to respond to unique problems. Group discussions,case studies and a group report shall be used to cover the topics.

IV. The Philippine Regulatory Toolkit

Students shall learn the various regulatory tools that have been implemented orcurrently being implemented in the Philippines and other jurisdictions. This will beachieved by asking the students to analyze current Philippine laws and compare andcontrast the different regulatory tools being used by each law. In order to fully

appreciate the different regulatory tools, comparative studies shall be undertakenso that students would be able to analyze how these tools have been implemented inother jurisdictions and how and why they may or may not be successfullyimplemented in the Philippines. The regulatory tools to be studied are:

a. Informational Statutes (EIA Law)b. Information-based policy making statutes (Clean Air Act, Ecological

Solid Waste Management, Clean Water Act)c. Statutes Creating Property Rights (Water Code, Fisheries Code,

Forestry Code)

171 Hon. Reynato Puno, Chief Justice of the Philippine Supreme Court, PhilippineEnvironmental Law Practice and the Role of the Courts ” , a speech delivered at the

Judges Forum on Environmental Protection: Philippine Environmental Law, held atthe Philippine Judicial Academy Development Center, Tagaytay, Philippines (August14, 2003).172 G.R. No. 101083, July 30, 1993.173 GR 171947-48, December 18, 2008.174 12 Oregon Review of International 1 ( 2010).



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d. Command and Control Statutes

Natural Resources Law

Course Description:

This course shall provide the students with an opportunity to study and analyzenatural resources law in the Philippines. In particular, it will give the students theopportunity to deepen their understanding of how common and open accessproperties are utilized and regulated and how access to natural resources impactthe economy and the environment. This will be an opportunity for the students tosee how distribution of wealth and access to natural resources impact on the use,conservation and preservation of natural resources. For this course, it would be best

to tap the expertise of an economist, particularly in the discussion of economic toolsof analysis in Part III. This course can be broken down into the following topics:

I. Natural Resources in the Philippines

This module shall examine the Regalian doctrine and how it affects access tocommon resources. Access to resources and distribution of benefits and how theyaffect the overall economic situation shall be particularly emphasized in thediscussion and analysis. Specific natural resources laws of the Philippines (Like theForestry Code and the Philippine Mining Act), how they affect and are affected bycurrent wealth distribution shall be discussed in exploring these themes.

II. Resource Conflicts

Conflicts often arise in determining how natural resources shall be used. Studentsshall examine these conflicts by studying and analyzing the conflicts expressly orimpliedly recognized by the Forestry Code, the Philippine Mining laws and thePublic Land and analyzing how these laws manage such conflicts.

III. The Cost-Benefit Analysis, Power-weighted social decision rule and othereconomic tools of analysis

There are various economic models and tools that help analyze the effects ofenvironmental law and policy. This module shall introduce students to some ofthese tools and provide opportunities for them to use it in analyzing resourceconflicts. The following topics must be covered in the discussion of these issues175:

175 The list of topics in Economics was taken from the Syllabus of Dr. AgustinArcenas of the University of the Philippines School of Economics. The integration of



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a. The environment as an assetb. Constructing a demand function for environmental assets and servicesc. Assessing benefits and costs of environmental use and protectiond. Static and dynamic analysis of costs and benefits

IV. The Philippine EIS System and its role in resource conflicts

The Philippine EIS system is one of the most under-maximized regulatory tool in thePhilippines176. This module shall examine how the EIS system could be used tomanage resource conflicts by studying how similar laws are being implemented andused in other jurisdictions.

Remedies in Environmental Law

Course Description:

This course is a remedial law course that will prepare students to make use of thedifferent formal remedies provided for by law. It shall also provide an opportunityfor students to explore other non-traditional remedies such as transformationalnegotiations, and mass campaign handling. The course must provide problem-solving exercises that would teach students to identify the appropriate remedy for agiven situation. The course would be broken down into the following topics:

I. The Rules of Procedure for Environmental Cases

The module would focus on the new rules of procedure issued by the SupremeCourt. It shall focus on the special features of the new rules (environmentalprotection orders, continuing mandamus, writs of kalikasan,) to provide a venue forthe exploration of issues (like the precautionary principle as a rule of evidence) thatmay be brought about by the implementation of the said rules

II. Alternative Dispute Resolution and Transformational Negotiations

The possibility and desirability of negotiations and bargaining in environmentaldisputes shall be studied and analyzed. Actual cases that have been subject to

this subject to the proposed course in Natural Resources was a result of a discussionby the researcher with Dr.176 In the interviews with the different Regional Directors of the EnvironmentalManagement Bureau, the researcher observed that all Regional Directors view theEnvironmental Impact Statement and the Environmental Compliance Certificate asmerely a “planning tool”.



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transformational negotiations shall be studied. Class discussions and role playingexercises shall be utilized in the study and analysis.

III. Citizens’ Participation and the role of lawyers

As earlier discussed, the Constitution as well as most of the recent statutes providefor citizens’ participation in planning resource use as well as management ofresources. Students must learn the opportunities for citizens’ participation provided

for by the statutes and explore ways and means by which the lawyer may enhancecitizens’ participation. Case studies and class discussions shall be used to cover thistopic.

Economics and the Environment 177

Course Description

This course shall teach the students basic economic concepts in the area ofenvironmental economics and how the principles of economic efficiency,sustainability and welfare affect environmental policy and the law. This is besttaught by a team of professors, one who is an expert in Economics and the other is alawyer.178 Discussions on the inter-locking roles of lawyers, economists andscientists shall be conducted with both professors present. The Economics expertsshall lecture on the following topics:

a. Environmental Issues and Externalities;b. Economic of Pollution;

c. Sustainable Development and Natural Resource economics;d. Management of common pool resources; and,e. Poverty and the environment.

Group discussions to be facilitated by the law professor shall follow each lecture inorder to explore how each concept affects, or is affected by law and policy.

177 Content and topics for this course was largely taken from the syllabus andinterview with Prof. Agustin Arcenas, PhD, College Secretary of the School ofEconomics, (March 4, 2013).178 The concept of team teaching the course was suggested by Dr. Arcenas.



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Introduction to Ecology179

Course Description

This is an introductory course to Ecology (first of two proposed courses). The

Course is designed to teach law students the basic concepts of ecology so that theymay appreciate the dynamics of our environment that are often ignored by law andpolicy. The course shall be co-handled by a Law Professor and a Professor ofEcology. The course shall cover the following key topics:

A. Science, Scientific Research and Thought

This part will cover the basic characteristics of scientific research and thought andhow it differs from legal thought. Through a comparison of how science and lawhandles a particular problem, students will appreciate that science deals with a lotof uncertainty, is dynamic, and because it build on previous theories and research,

continues to evolve. Law and policy on the other hand seeks stability and uniformityand thus there are difficulties in coming up with science-based law and policy.Through discussions and case studies, students will collectively determine the roleof science in law and policy-making.

B. Global Cycles

Discussions on the Global Cycles will center on key global cycles which include the(i) El Nino – La Nina events, weather patterns and ocean currents; and, (ii) carbon,nitrogen and phosphorus cycles. What these cycles are, how they impact ourenvironment and how these cycles affect and are affected by human activities shall

be discussed by the Ecology professor. The Law Professor, on the other hand, shallfacilitate discussions on how these cycles affect and are affected by law and policy.

C. Biomes, Eco-Regions, Distribution and Bio-diversity

This part shall include the ecological concepts of biomes and eco-regions. It will takea look at some specific eco-systems that exist in the country to study theircharacteristics and uniqueness, including (i) island biogeography, (ii) urbanecosystems, (iii) estuaries, and (iv) coral reefs. Species, distribution and populationsshall likewise be reviewed.

D. Population Dynamics and Relationships

179 This course and the succeeding course (Ecology and Climage Change) is based ona Course Outline prepared by Lynne C. Gardner, M.S.Candidate, Ph.D. Ecology and Evolutionary Biology, Iowa State University,Department of Natural Resource Ecology and Management



44

This part shall cover the concepts of species’ population and population parameters,relationships between individuals and species, population dynamics with specialfocus on humans and how human population dynamics affect other species.

Ecology and Climate Change

This course shall build up on the basic knowledge of Ecology acquired in theintroductory course and focus the impact of climate change on the naturalenvironment. As in the introductory course, this course shall be taught by anEcology Professor and a Law Professor. It shall be divided into the following keytopics:

A. Dynamic Equilibria, Stable States, and Trophic Networks

In this part, the class shall take a look at concepts such as dynamic equilibria andstable states, trophic networks, keystone species and invasive species and howchanges brought about by climate change can cause a disturbance that could cause ashift to a new state. Side by side with this would be a discussion of laws and policiesthat would allow humans to manage resources given the changes and theuncertainties that come with altered states.

B. Climate change and Phenology

In this part, the class will study how species have historically adapted to changes in

the natural environment and how the changes caused by climate change aredifferent in terms of time scales. Changes in phenology shall be looked at and effectssuch as altered migration and overlap in ranges shall be studied in the context of thecarrying capacity of the ecosystem. Policies and laws shall then be reviewed andanalyzed in order to see how effective or ineffective they are to respond to thesechanges.

C. Climate Change and Human health

This part will look into the impact of climate change on human health, particularlyhow the ecological changes triggered by climate change will affect human health.

Climate Change and the Law

Course Description



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This course will provide a basic introduction to the science and economics ofclimate change, as well as the emerging laws and policies intended to control GHGs.The course will provide students with the opportunity to assess the effectiveness ofnational and international efforts to date, in both developed and developingcountries. The course shall be broken down into a discussion of :

I. Climate Change Science

This module shall introduce the students to the latest findings of the Inter-Governmental Panel on Climate Change (IPCC) so that they may appreciate that theuncertainty lies only in the pace and severity of the change. Videos and othermaterials available in the internet shall be used to expose the students to thedifferent views and opinions on climate change.

Studies on the specific impacts of climate change in the Philippines (increasingfrequency and severity of extreme weather events, sea level rise, drought and its

impact on food production) shall also be explored.

II. International Policy Responses to Climate Change

International policy responses, from the United Nations Framework Convention onClimate Change and the progress of international negotiations shall be studied bylooking into the Kyoto Protocol (February 16, 2005), the Bali Roadmap (2007), the2009 Copenhagen Climate Change Conference, Cancun Climate Change Conferenceof 2011, Conference of the Parties (COP) 17 and 18. Students shall be grouped intosmall groups and shall be asked to look into the different aggrupation of nations(Annex 1, Small island nations, Brazil, India and China etc.) and how their respective

positions have progressed (or regressed) in the international negotiations. Eachgroup shall then report to the class to defend their group’s position.

In addition, the concept of Common But Differentiated Responsibilities (CBDR) shallbe critically analyzed. Policies on emissions trading, Clean DevelopmentMechanisms (CDM), and the possibility of resorting to litigation shall be explored.Students will also be given the opportunity to explore how a country like thePhilippines can contribute towards arriving at an international consensus onresponses to climate change.

Local CDM projects shall also be studied to assess the effectiveness of this approach.

Students will look into the process of selection and approval of CDM by thedesignated authority and study the impacts of the projects in the communities.

III. Local responses to Climate Change

In this module, the students will find, study and analyze different local (fromcommunity, to City to State to multi-state) responses to Climate change. Princetoneconomists Pacala and Socolow’s stabilization wedges shall also be introduced in



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order to help appreciate the responses and develop other possible responses toclimate change.

IV. Philippine Response to Climate Change

The students will then look into Republic Act 9729, the National FrameworkStrategy on Climate Change and the Philippine Strategy on Climate ChangeAdapt ation. Students will find, study and analyze actual results of “climate changemainstreaming” called for by RA 9729 and assess its effectivity. Students shall beasked to write a paper on this topic and evaluate the Philippine’s response to

climate change.

Adaptation to Climate Change

Course Description

This course shall provide the students the opportunity to examine the complexissues that adaptation to climate change brings. It will give students insights on howcommunities and nations can adapt to climate. It will likewise help studentsappreciate the ethical, technical, financial, social and legal impacts of the variouspossible approaches to adaptation. The course would cover the following topics:

A. Adaptation from resilience to transformation

Students will learn the different approaches to adaptation and how the concept ofadaptation has progressed from resilience to transformation.

B. Limits to Adaptation

There are many possible limitations on adaptation measures. Some argue that thereare biological and/or natural limits, other assert that there are social limits, othersclaim that imprecise knowledge about climate change limits our adaptive capability.Regardless of the soundness of these assertions, it is important to consider allpossible limitations on adaptive measures of communities or nations so possibleoptions may be considered by lawyers and policy makers. This course shall providean overview of possible limits to our adaptive capacity.

C. The Economics of Climate Change

Some authors assert that standard economic theory is insufficient to confront theproblem of climate change. This course will look into the possible effects of possiblecatastrophic changes on standard economic models and shall look into other modelsthat would help determine appropriate adaptation policies. An economist may betapped to handle this part of the course.

D. Adaptation in the Philippines



Poorer countries like the Philippines are the most vulnerable to climate change. Thiscourse shall look into the specific challenges that the Philippines face including sealevel rise, the rise in frequency of extreme weather events, drought and changes inthe hydrological cycle. Participants in the program shall have the opportunity to

examine the Philippines’ vulnerabilities and analyze the countries’ capacity to adapt.Participants shall explore possible adaptation measures and recommend legal andpolicy instruments that would allow the country to combine its development andadaptation goals.

LLM THESIS

Course Description

This is a thesis course intended to provide the students with an opportunity tocontribute in enriching Philippine literature in Environmental Law. Students shallbe required to write a masteral thesis on topic that could enrich environmental lawand practice in the Philippines as a prerequisite to completing the LLM course.

rjp's research paper (students' copy)

Documents